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Übersetzung durch Samson-Übersetzungen GmbH, Dr. Carmen von Schöning Translation provided by Samson-Übersetzungen GmbH, Dr. Carmen von Schöning Stand: Die Übersetzung berücksichtigt die Änderung(en) des Gesetzes durch Artikel 1 des Gesetzes vom 10.10.2013 (BGBl. I S. 3786) Version information: The translation includes the amendment(s) to the Act by Article 1 of the Act of 10.10.2013 (Federal Law Gazette I p. 3786)
Zur Nutzung dieser Übersetzung lesen Sie bitte den Hinweis auf www.gesetze-im-internet.de unter "Translations".
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Code of Civil Procedure Code of Civil Procedure as promulgated on 5 December 2005 (Bundesgesetzblatt (BGBl., Federal Law Gazette) I page 3202; 2006 I page 431; 2007 I page 1781), last amended by Article 1 of the Act dated 10 October 2013 (Federal Law Gazette I page 3786) Footnote Source cited valid from 1 January 1980; some of the measures based on the Treaty between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity (Unification Treaty) are no longer to be applied, cf. Annex “EV” to the Code of Civil Procedure. Version of the Code of Civil Procedure dated 30 January 1877, promulgated in Reichsgesetzblatt (RGBl., Law Gazette of the Reich) page 83, amended by Article 9 of the Act dated 12 September 1950 (Federal Law Gazette I page 455). Pursuant to the ruling handed down by the Federal Constitutional Court of 7 October 2003, published in Entscheidungen des Bundesverfassungsgerichts (BVerfGE, Rulings of the Federal Constitutional Court) 2004 I 124 – 1 BvR 10/99 – the Code of Civil Procedure as valid until 31 December 2001 was unconstitutional as it was not compatible with the principle of a state governed by the rule of law, nor with Article 103 (1) of the German Constitution (Grundgesetz, GG) insofar as it did not provide for a means of obtaining legal protection against violations of the entitlement to be given an effective and fair legal hearing by appellate judgments handed down by higher regional courts (Oberlandesgerichte, OLG) outside of the appeal on points of law that was dependent on the value of the matter in dispute. Code of Civil Procedure In its wording, the Code of Civil Procedure has the following status: the version as promulgated on 5 December 2005 (Federal Law Gazette I 2005, page 3202), (2006, page 431) as amended by Article 50 of the Act dated 19 April 2006 (Federal Law Gazette I page 866) (Act on Regulatory Reform of Federal Law in the Area of Responsibility of the Federal Ministry of Justice (Gesetz über die Bereinigung von Bundesrecht im Zuständigkeitsbereich des Bundesministeriums der Justiz, BMJBerG 1)) with effect per 25 April 2006. Notes on the translation: Words denoting any gender (masculine, feminine and neuter) shall include both the other genders. Words denoting the singular shall include the plural and vice versa.
Book 1 General regulations
Chapter 1 Courts
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Title 1 Substantive jurisdiction of the courts; regulations as to value
Section 1 Substantive jurisdiction
The substantive jurisdiction of the courts is determined by the Courts Constitution Act (Gesetz über die Gerichtsverfassung, GVG).
Section 2 Significance of the value
Should, pursuant to the stipulations of the present Code or of the Courts Constitution Act (Gesetz über die Gerichtsverfassung, GVG), the value of the subject matter being litigated, of the subject matter of the appeal, of the gravamen, or of the sentence govern, the following provisions shall apply.
Section 3 Assessment of the value at the sole discretion of the court
The value shall be assessed by the court at its sole discretion; upon a corresponding application having been made, it may direct that evidence be taken, and it may direct ex officio that visual evidence be taken on site and that experts report on the value.
Section 4 Computation of the value; ancillary claims
(1) In computing the value, the point in time at which the action is brought is decisive; where the matter has been appealed, it is the point in time at which the appeal has been filed; where a sentence is concerned, it is the point in time at which that hearing is closed subsequent to which the judgment is handed down; fruits, usufruct, interest, and costs shall not be considered where they are asserted as ancillary claims. (2) Where claims are brought based on bills of exchange in the sense as defined by the Law for Bills of Exchange and Promissory Notes (Wechselgesetz), interest, costs, and commissions that are being sought outside of the amount of the bill are to be regarded as ancillary claims.
Section 5 Plurality of claims
A plurality of claims asserted in a single complaint will be considered in the aggregate; this shall not apply to the subject matter of the action or of any countercharges.
Section 6 Possession; freezing of property; security right
The value is determined as follows: by the value of an object if its possession is relevant, and by the amount of the claim if its being frozen or a security right is relevant. Should the object governed by the security right have a lower value, this shall govern.
Section 7 Easement
The value of an easement is determined by the value it has for the dominant tenement; where the amount by which the value of the servient tenement is reduced is higher, the value of the easement shall be determined by that amount.
Section 8 Lease or tenancy relationship
Where the existence or the term of a lease or tenancy relationship is at issue, the amount of the rent accruing for the total period of time at issue shall be relevant and, where the amount of the payment for one year multiplied by a factor of 25 is lower, that amount shall govern for the computation of the value.
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Section 9 Recurrent usufruct or performance
The value of the right to recurrent usufruct or performance is calculated based on the receipts for one year multiplied by a factor of 3.5. Should the term of the right to such receipts have been determined, the total amount of the future receipts shall govern where it is the lower amount.
Section 10 (repealed)
Section 11 Binding decision as to the lack of jurisdiction
Where, based on the rules concerning the substantive jurisdiction of the courts, the lack of jurisdiction of a court has been pronounced in a final and binding judgment, such decision shall be binding upon the court with which the matter will become pending at a later time.
Title 2 Venue
Section 12 General venue; term
The court within the jurisdiction of which a person has his general venue is competent for all actions that may be brought against that person, unless an exclusive venue has been established for court actions.
Section 13 General venue of the place of residence
The general venue of a person is determined by his place of residence.
Section 14 (repealed)
Section 15 General venue of extraterritorial German citizens
(1) German citizens entitled to the privilege of exterritoriality as well as German civil servants working abroad will retain the venue of their last place of residence in Germany. Should they not have had such a place of residence, their venue shall be the local court (Amtsgericht, AG) of Schöneberg in Berlin. (2) The present rule shall not apply to honorary consuls.
Section 16 General venue of persons without a place of residence
The general venue of a person who has no place of residence shall be determined by that person’s place of abode in Germany and, where no such place of abode is known, by that person’s last place of residence.
Section 17 General venue of legal persons
(1) The general venue of the municipalities, corporate bodies, and of those companies, co- operatives or other associations as well as of those foundations, institutions, and available assets that may be sued as such is defined by their registered seat. Unless anything to the contrary is stipulated elsewhere, a legal person’s registered seat shall be deemed to be the place at which it has its administrative centre. (2) Mining companies have their general venue with the court having jurisdiction over the location of the mine; public authorities – provided they can be sued as such – have their general venue with the court of their official seat.
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(3) It is admissible to determine a venue, in derogation from what is determined by the stipulations of the present subsection, by statute or by other special provision.
Section 18 General venue of the government treasury
The general venue of the treasury of the government is determined by the official seat of the public authority authorised to represent the government treasury in the legal dispute.
Section 19 Several judicial districts at the official seat of the public authority
Where the location at which a public authority has its official seat is divided up into several judicial districts, the district that is to be deemed the official seat of the authority as defined by sections 17 and 18 shall be determined, for federal authorities, by the Federal Minister of Justice, while the Land department of justice (Landesjustizverwaltung) shall determine said district for all other agencies; in either case, this will be effected by a general order.
Section 19a General venue of the insolvency administrator
The general venue of an insolvency administrator for actions concerning the insolvency estate is determined by the seat of the insolvency court.
Section 20 Specific jurisdiction of the place of abode
Where persons have their place of abode at a location under circumstances that, by their nature, indicate that their abode will be of a longer term, in particular because such persons are household help, workers, assistants in commercial enterprises, university students, pupils, or apprentices, the court of their place of abode shall have jurisdiction for all actions that may be brought against these persons for claims under property law.
Section 21 Specific jurisdiction of a place of business
(1) Should someone have a place of business serving the operation of a factory, a trade enterprise, or any other commercial establishment, and from which transactions are directly concluded, all actions that relate to the operation of the place of business may be brought against that person at the court of the location at which the place of business is situate. (2) The jurisdiction of the place of business also applies to actions brought against persons acting as owners, beneficiaries, or lessees in managing a property, on which residential and service buildings have been constructed, to the extent such complaints concern the legal relationships relating to the property’s management.
Section 22 Specific jurisdiction of a membership
The court with which municipalities, corporate bodies, societies, co-operatives, or other associations have their general venue shall have jurisdiction for those actions that are brought by them or by the insolvency administrator against the members as such, or that are brought by the members against one other in their capacity as such.
Section 23 Specific jurisdiction of assets and of an object
For complaints under property law brought against a person who has no place of residence in Germany, that court shall be competent in the jurisdiction of which assets belonging to that person are located, or in the jurisdiction of which the object being laid claim to under the action is located. Where claims are concerned, the debtor’s place of residence and, in cases in which an object is liable for the claims as collateral, the place at which the object is located shall be deemed to be the location at which the assets are located.
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Section 23a (repealed)
Section 24 Exclusive jurisdiction as to the subject matter (forum rei sitae)
(1) For complaints by which ownership, an encumbrance “in rem”, or the freedom from such an encumbrance is being asserted, and for complaints concerning the settlement of boundary disputes, or the partition or possession of immovable property, that court shall have exclusive competence in the jurisdiction of which the object or property is situate. (2) For complaints concerning an easement, a realty charge, or a right of pre-emption, the location of the servient tenement or encumbered property shall be relevant.
Section 25 Jurisdiction as to the subject matter (forum rei sitae) in light of the matter’s
connection with the various facts and their overall context Should the jurisdiction of a court be governed by the subject matter of the dispute, the creditor’s complaint for performance (Schuldklage) may be brought together with any complaint concerning a mortgage, charge on land, or annuity charge on land; the complaint for exemption from personal liability may be brought together with the complaint for transfer or cancellation of a mortgage, charge on land, or annuity charge on land; the complaint for overdue performance may be brought together with the complaint for recognition of a realty charge; in all cases, such consolidated actions must be brought against one and the same defendant.
Section 26 Jurisdiction as to the subject matter (forum rei sitae) for complaints brought against a
person Where the jurisdiction of a court is governed by the subject matter of the dispute, complaints brought against a person may be filed against the owner or possessor of an immovable property, as may be complaints for damages caused to real estate, or actions brought concerning compensation for the expropriation of a plot of real estate.
Section 27 Specific jurisdiction of an inheritance
(1) Complaints brought in order to have the court determine succession, or to assert claims of the heir against a possessor of an inheritance, claims under testamentary gifts or under other testamentary trusts, claims to the compulsory portion of the inheritance, or complaints brought regarding the distribution of the inheritance may be brought with the court at which the testator had his general venue at the time of his death. (2) If the testator is a German citizen who had no general venue in Germany at the time of his death, the complaints designated in subsection (1) may be brought with the court in the jurisdiction of which the testator had his last place of residence in Germany; where he did not have such a place of residence, the rule of section 15 (1), second sentence, shall apply mutatis mutandis.
Section 28 Extended jurisdiction of an inheritance
In the jurisdiction where an inheritance is situate, complaints may also be filed for other liabilities of the estate, provided that the estate is still situate, either as a whole or in part, in the court’s jurisdiction, or provided that the existing plurality of heirs is liable as joint and several debtors.
Section 29 Specific jurisdiction of the place of performance
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(1) For any disputes arising from a contractual relationship and disputes regarding its existence, the court of that location shall have jurisdiction at which the obligation is to be performed that is at issue. (2) An agreement as to the place of performance shall establish a court as the forum only insofar as the parties to the agreement are merchants, legal persons under public law, or special assets (Sondervermögen) under public law.
Section 29a Exclusive jurisdiction of spaces governed by a tenancy or lease agreement
(1) For disputes concerning claims under tenancy or lease relationships regarding spaces, or disputes regarding the existence of such relationships, the court in the jurisdiction of which the spaces are situate shall have exclusive competence. (2) Subsection (1) shall not apply to residential spaces of the type provided for by section 549 (2) numbers 1 to 3 of the Civil Code (Bürgerliches Gesetzbuch, BGB).
Section 29b (repealed)
Section 29c Specific jurisdiction for doorstep sales
(1) For complaints regarding off-premises contracts (section 312b of the Civil Code (Bürgerliches Gesetzbuch, BGB)), that court in the jurisdiction of which the consumer has his place of residence at the time he is bringing proceedings shall be competent; where the consumer has no such place of residence, his habitual place of abode shall be relevant. For complaints brought against the consumer, the above court shall have exclusive jurisdiction.
(2) Section 33 (2) shall not apply to any countercharges brought by the respective other party to the agreement. (3) An agreement will be deemed admissibly made, in derogation from subsection (1), in those cases in which, following the conclusion of the contract, the consumer relocates his place of residence or habitual place of abode to a location outside the territorial scope of this Act, or in which the consumer’s place of residence or habitual place of abode is not known at the time proceedings are brought in the courts.
Section 30 Jurisdiction for Carriage
(1) For legal disputes arising from the carriage of goods, also that court shall be competent in the jurisdiction of which the place is situate at which the goods were received for carriage, or at which the goods are intended to be delivered. Any complaint directed against the transport operator performing the carriage or the carrier performing the carriage may also be filed at the venue of the transport operator or carrier. Any complaint directed against the transport operator or the carrier may also be filed at the venue of the transport operator performing the carriage or of the carrier performing the carriage. (2) For legal disputes arising from the carriage of passengers and their luggage on ships, also that court in the jurisdiction of which the location is situate that is designated in the contract of carriage as the location at which passengers leave the ship or as the destination shall be competent. Any agreement in derogation from the first sentence shall be invalid if it is made prior to the event that has caused the death or bodily injury of the passenger, or the loss, damage, or delayed re-delivery of the luggage.
Section 30a Jurisdiction for claims arising from search and rescue operations
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For complaints filed regarding claims arising from search and rescue operations for ships or other assets in a body of water against a person who has no venue in Germany, that court shall be competent with whom the plaintiff has his general venue in Germany.
Section 31 Specific jurisdiction for asset management
For complaints brought under an asset management relationship by the principal against the administrator, or by the administrator against the principal, the court in the jurisdiction of which the assets are managed shall have jurisdiction.
Section 32 Specific jurisdiction for tort
For complaints arising from tort, the court in the jurisdiction of which the tortious act was committed shall have jurisdiction.
Section 32a Exclusive jurisdiction for effects on the environment
For complaints brought against the operator of a facility listed in Annex 1 of the Act on Liability for Environmental Damage (Umwelthaftungsgesetz), by which a claim to compensation is asserted for damages caused by effects on the environment, the court in the jurisdiction of which the facility’s effects on the environment originated shall have exclusive competence. This shall not apply where the facility is situate abroad.
Section 32b Exclusive jurisdiction for false or misleading public capital market disclosures, and
exclusive jurisdiction in the event that such disclosures have not been made (1) For complaints in which:
1. The compensation of damages caused by false or misleading public capital market disclosures, or caused by the failure to make such disclosure, or
2. The compensation of damages caused by the use of false or misleading public capital market disclosures, or caused by the failure to inform the public that such public capital market disclosures are false or misleading, or
3. A claim to performance under a contract based on an offer pursuant to the Securities Purchase and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz)
is being asserted, that court shall have exclusive jurisdiction that is located at the registered seat of the issuer concerned, of the offeror concerned of other capital investments, or of the targeted company, where said registered seat is situate within Germany and the complaint is directed, at least also among others, against the issuer, the offeror, or the targeted company.
(2) The Land governments are authorised to assign by statutory instrument the complaints set out in subsection (1) to a regional court (Landgericht, LG) for the jurisdictions of several regional courts, provided this is expedient for promoting the proceedings ratione materiae or for accelerating the termination of the proceedings. The Land governments may confer this authorisation upon the Land departments of justice.
Section 33 Specific jurisdiction for countercharges
(1) Countercharges may be brought with the court with which the complaint has been filed if there is a connection between the counterclaim and the claim being asserted in the action, or between the counterclaim and the means of defence raised against the claim. (2) This shall not apply if, due to a counterclaim having been brought, it is not admissible to agree on the jurisdiction of the court for a complaint pursuant to section 40 (2).
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Section 34 Specific jurisdiction of the main proceedings
The court of the main proceedings shall have jurisdiction for complaints brought for fees and expenditures by attorneys of record, persons providing assistance, authorised recipients, and court-appointed enforcement officers.
Section 35 Selection from among several jurisdictions
The plaintiff shall be allowed to select among several jurisdictions.
Section 35a (repealed)
Section 36 Determination of jurisdiction by a court
(1) The competent court will initially be determined by the court of the next higher level of jurisdiction:
1. Where the court actually competent is prevented by legal or factual reasons, in an individual case, from exercising a judicial function;
2. Where it is uncertain, in light of the boundaries of different judicial districts, which court is competent for the legal dispute;
3. Where several persons having their general venue with different courts are to be sued as joined parties at the general venue, and where no specific jurisdiction common to all parties has been established for the legal dispute;
4. Where the complaint is to be filed in the jurisdiction as to the subject matter (forum rei sitae) and the object concerned is situate in jurisdictions of various courts;
5. Where different courts have declared in a legal dispute that they are competent and that their judgments are final and binding;
6. Where different courts, of which one is competent for the legal dispute, have declared in a final and binding judgment that they are not competent.
(2) In the event the next higher court common to all parties is the Federal Court of Justice (Bundesgerichtshof, BGH), the competent court will be determined by that higher regional court (Oberlandesgericht, OLG) in the jurisdiction of which the court initially dealing with the matter is situate. (3) If, in determining the competent court, the higher regional court (Oberlandesgericht, OLG) wishes to deviate from the decision handed down by another higher regional court or by the Federal Court of Justice (Bundesgerichtshof, BGH) concerning a question of law, it is to submit the matter to the Federal Court of Justice, stating the reasons on which its interpretation of the law is based. In such event, the Federal Court of Justice shall rule on the matter.
Section 37 Procedure by which a court determines the venue
(1) The petition for determination of the competent court shall be set out in an order delivered by the court. (2) The decision determining the competent court is not contestable.
Title 3 Agreement as to the jurisdiction of the courts
Section 38 Admissible agreement as to the choice of venue
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(1) A court of first instance that as such is not competent will become the forum by express or tacit agreement of the parties should the parties to the agreement be merchants, legal persons under public law, or special assets (Sondervermögen) under public law. (2) The competence of a court of first instance may be agreed, furthermore, wherever at least one of the parties to the agreement has no general venue in Germany. Such agreement must be concluded in writing or, should it have been concluded orally, must be confirmed in writing. If one of the parties has its general venue in Germany, a court may be selected in Germany only if that party has its general venue in that court’s jurisdiction, or if a specific jurisdiction is given. (3) In all other regards, a choice-of-court agreement shall be admissible only where it was concluded, expressly and in writing:
1. After the dispute has arisen, or
2. For the event that, following the conclusion of the agreement, the party to whom claim is to be laid relocated his place of residence or habitual place of abode to a location outside the territorial scope of this Code, or for the event that the party’s place of residence or habitual place of abode is not known at the time the proceedings are brought in the courts.
Section 39 Competence of a court as a result of a party having participated in court proceedings
without objecting to the court’s lack of jurisdiction (rügelose Verhandlung) Furthermore, the competence of a court of first instance is established by the fact that the defendant makes an appearance in oral argument on the merits of the case and fails to object to the court’s lack of jurisdiction. This shall not apply where the notification stipulated by section 504 was not given.
Section 40 Invalid and inadmissible choice of court agreement
(1) The choice-of-court agreement shall have no legal effect if it does not refer to a certain legal relationship and to the legal disputes arising therefrom. (2) A choice-of-court agreement shall be inadmissible where:
1. The legal dispute concerns non-pecuniary claims that are assigned to the local courts (Amtsgerichte, AG) without consideration of the value of the subject matter being litigated, or
2. An exclusive jurisdiction has been established for the complaint. In these cases, the competence of a court will not be established by a party making an appearance in oral argument on the merits of the case without asserting the court’s lack of jurisdiction.
Title 4 Disqualification and recusal of court personnel
Section 41 Disqualification from the exercise of judicial office
A judge is disqualified by law from exercising judicial office:
1. In all matters in which he himself is a party, or in which his relationship to one of the parties in the proceedings is that of a co-obligee, co-obligor, or a party liable to recourse;
2. In all matters concerning his spouse or former spouse;
2a. In all matters concerning his partner or former partner under a civil union;
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3. In all matters concerning persons who are or were directly related to him, 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. In all matters in which he was appointed as attorney of record or as a person providing assistance to a party, or in which he is or was authorised to make an appearance as a legal representative of a party;
5. In all matters in which he is examined as a witness or expert;
6. In all matters in which he assisted, at a prior level of jurisdiction or in arbitration proceedings, in entering the contested decision, unless this concerns activities of a judge correspondingly delegated or requested.
7. In all matters concerning court procedures of excessive duration, if he assisted in the impugned proceedings at the level of jurisdiction, the duration of which is the basis for the claim to compensation.
8. In all matters in which he assisted in mediation proceedings or in any other alternative conflict resolution procedures.
Section 42 Recusal of a judge from a case
(1) A judge may be recused from a case both in those cases in which he is disqualified by law from exercising a judicial office, and in those cases in which there is a fear of bias. (2) A judge will be recused for fear of bias if sound reasons justify a lack of confidence in his impartiality. (3) In all cases, both parties shall have the right to recuse a judge.
Section 43 Loss of the right to recuse a judge
A party may no longer recuse a judge for fear of bias if that party has made an appearance before said judge at a hearing, or filed petitions, without asserting the reasons for recusal of which it is aware.
Section 44 Motion to recuse a judge
(1) The motion to recuse a judge is to be filed with the court of which the judge concerned is a member; it may be recorded with the registry for the files of the court. (2) The grounds for such recusal are to be demonstrated to the satisfaction of the court; the party may not be permitted to make a statutory declaration in lieu of an oath. By way of demonstrating the grounds for recusal, the testimony of the judge being recused may be referred to. (3) The judge regarding whom a motion for recusal has been filed shall make his statements regarding the grounds therefor in his judicial capacity. (4) If a judge is recused for fear of bias before whom a party has made an appearance at a hearing, or with whom a party has filed petitions, it shall be demonstrated to the satisfaction of the court that the grounds for filing a motion for recusal arose only at a later date, or became known to the party at a later date.
Section 45 Decision on a motion to recuse a judge
(1) That court of which the judge is a member shall rule on a motion to recuse him, without that judge being involved in the decision.
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(2) If a judge at a local court (Amtsgericht, AG) is to be recused, a different judge of the local court shall rule on the motion. No decision need be handed down where the judge regarding whom a motion for recusal has been filed believes this motion to be justified. (3) Should the court competent to take the decision become unable to enter a judgment as a result of its member having been recused, the court of the next higher level of jurisdiction shall rule on the matter.
Section 46 Decision and appellate remedies
(1) The decision on a motion to recuse a judge shall be issued by a court order. (2) No appellate remedies may be lodged against the court order declaring the motion to be justified, while a complaint subject to a time limit may be filed against any order declaring the motion to be without justification.
Section 47 Official acts that cannot be delayed
(1) Prior to the motion to recuse him having been dealt with, a judge regarding whom such a motion for recusal has been filed may take only such measures that cannot be delayed. (2) Should a motion for recusal be filed regarding a judge during a hearing, and should the decision regarding the recusal require the hearing to be postponed, the hearing may be continued with the involvement of the judge regarding whom a motion for recusal has been filed. If the motion for recusal is declared justified, the part of the hearing that took place after the motion was filed is to be repeated.
Section 48 Self-recusal; recusal ex officio
The court competent for conclusively dealing with the motion to recuse a judge is to decide on the matter also in those cases in which such a motion is not appropriate, but in which the judge notifies the court that a relationship exists that might justify his recusal, or in which other reasons give rise to concerns that the judge might be disqualified by law.
Section 49 Records clerks
The stipulations of the present Title shall apply mutatis mutandis also to the records clerk of the court registry; the decision shall be handed down by the court at which that records clerk is employed.
Chapter 2 Parties
Title 1 Capacity to be a party to court proceedings; capacity to sue and be sued
Section 50 Capacity to be a party to court proceedings
(1) Any person having legal capacity shall also have the capacity of being a party to court proceedings. (2) An association having no legal capacity may sue and be sued; in a legal dispute, the association shall have the same position as an association having legal capacity.
Section 51 Capacity to sue and be sued; legal representation; pursuit of court proceedings
(1) Unless stipulated otherwise by the subsections hereinbelow, the ability of a party to appear before a court, the representation of parties having no capacity to sue or be sued by other persons (legal representatives), and the need for a special authorisation for the pursuit of court proceedings are determined pursuant to the stipulations of civil law. (2) Any fault of a legal representative shall be equivalent to the fault of the party.
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(3) If a party having no capacity to sue or be sued, who is an individual of full legal age, has validly authorised another individual, in writing, to represent him before the court, the person so authorised shall be equivalent to a legal representative wherever the authorisation is suited to cancel the need for custodianship in accordance with section 1896 (2), second sentence, of the Civil Code (Bürgerliches Gesetzbuch, BGB).
Section 52 Scope of the capacity to sue and be sued
(1) A person shall have the capacity to sue and be sued insofar as he can be obligated by agreements.
Section 53 Legal disability in case of custodianship or curatorship
Where a person having the capacity to sue or be sued is represented by a custodian or curator, that person shall have the equivalent position in the legal dispute as a person who is under legal disability.
Section 53a (repealed)
Section 54 Special authorisation to take actions in the proceedings
Individual actions to be taken in the proceedings, for which special authorisation is required under the stipulations of civil law, shall be valid also without such authorisation if the authorisation was granted for the pursuit of the proceedings in general, or if the pursuit of such proceedings is an available remedy also without such general authorisation.
Section 55 Foreigners’ capacity to sue and be sued
A foreigner who, according to the laws of his country, lacks the capacity to sue and be sued, shall be deemed to have such capacity if, pursuant to the laws to which the court hearing the case is subject, he is entitled to such capacity to sue and be sued.
Section 56 Review ex officio
(1) The court is to take account ex officio of any lack in terms of the capacity to be a party to court proceedings, of the capacity to sue and be sued, of the legitimisation of a legal representative, and of the required authorisation to pursue legal proceedings. (2) If any delay would entail imminent danger for a party, that party or its legal representative may be admitted to pursue legal proceedings, with the proviso that the lack identified must be remedied. The final judgment may be delivered only after the period determined for the remediation of the lack has expired.
Section 57 Curator ad litem
(1) If any delay would entail imminent danger where a party under legal disability is to be sued who has no legal representative, the presiding judge of the court hearing the case is to appoint a special representative for that party, upon a corresponding petition being filed, until the legal representative enters the proceedings. (2) The presiding judge may appoint such a representative also if, in the cases set out under section 20 hereinabove, a person having no capacity to conduct proceedings is to be sued at the court of his place of abode.
Section 58 Curator ad litem for ownerless real estate or unclaimed ships
(1) Should a right to a plot of real estate that has been given up by its previous owner pursuant to section 928 of the Civil Code (Bürgerliches Gesetzbuch, BGB), and that has not
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yet been acquired by the party entitled to appropriate it, be asserted by filing a corresponding court action, the presiding judge of the court hearing the case is to appoint a representative, upon a corresponding petition being filed, who shall be responsible for exercising the rights and fulfilling the obligations in the legal dispute that result from the ownership of the plot of real estate until a new owner has been entered in the land register. (2) Subsection (1) shall apply mutatis mutandis wherever, by filing a corresponding court action, a right is to be asserted to a registered ship or a ship under construction that was given up by its previous owner pursuant to section 7 of the Act Governing Rights in Registered Ships and Ships under Construction (Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken) dated 15 November 1940 (Law Gazette of the Reich (Reichsgesetzblatt, RGBl.) I page 1499), and that has not yet been acquired by the party entitled to appropriate it.
Title 2 Joinder of parties
Section 59 Joinder of parties in communities of interest with regard to the disputed right, or
where the cause is identical A plurality of persons may jointly sue or be sued as joined parties if they form a community of interest with regard to the disputed right, or if they are entitled or obligated for the same factual and legal cause.
Section 60 Joinder of parties in the event of similar claims
A plurality of persons may also jointly sue or be sued as joined parties if similar claims or obligations form the subject matter in dispute and such claims are based on an essentially similar factual and legal cause.
Section 61 Effect of a joinder of parties
Unless stipulated otherwise by civil law or the present Code, joined parties shall deal with their opponent as individuals in such a form that the actions of one of the joined parties will neither benefit the other joined party nor place it at a disadvantage.
Section 62 Necessary joinder of parties
(1) Where the legal relationship at issue can be established vis-à-vis all joined parties only uniformly, or where the joinder of parties is a necessity for other reasons, those of the joined parties who have failed to comply with procedural rules shall be deemed to have been represented by those who did not so fail. (2) The joined parties who have failed to comply with procedural rules shall continue to be involved also in the later proceedings.
Section 63 Pursuit of the proceedings; summonses
Each of the joined parties is entitled to the right to pursue the proceedings; the entirety of all joined parties is to be summoned to the hearings.
Title 3 Involvement of third parties in the legal dispute
Section 64 Third-party intervention through an action against the two parties to a pending
lawsuit
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Anyone asserting a claim to the object or the right regarding which a legal dispute is pending between other persons, either as a whole or in part, shall be entitled, until a final and binding judgment has been handed down on that dispute, to assert his claim by filing a complaint against both of the parties with the court before which the legal dispute became pending in the proceedings in the first instance.
Section 65 Suspension of the main proceedings
Upon corresponding application being made by a party, the main proceedings may be suspended until a final and binding judgment has been handed down regarding the third- party intervention through an action brought against the two parties to a pending lawsuit.
Section 66 Third-party intervention in support of a party to the dispute
(1) Anyone who has a legitimate interest in one party prevailing over the other in a legal dispute pending between other parties may intervene in the proceedings in support of that party. (2) The third-party intervention in support of a party to the dispute may be made at any stage of the legal dispute until a final and binding judgment is handed down, and may also be effected in conjunction with an appellate remedy.
Section 67 Legal position of the third party intervening in support of a party to the dispute
The third party intervening in support of a party to the dispute must enter into the legal dispute in whatever situation the dispute may be in at the time the third party is acceding to it; the third party is entitled to assert means of challenge or defence and to effectively take all actions in the proceedings such that they are valid, provided that its declarations and actions are not in opposition to the declarations made and actions taken by the primary party.
Section 68 Effect of the third-party intervention in support of a party to the dispute
The third party intervening in support of a party to the dispute will not be heard, in its relationship to the primary party, where it alleges that the legal dispute as brought before the judge has been ruled on incorrectly; an allegation by the third party intervening in support of a party to the dispute, to the effect that the primary party had pursued the proceedings inadequately, will be heard only insofar as the status of the legal dispute as given at the time of the third party’s accession, or declarations made and actions taken by the primary party, prevented it from lodging means of challenge or defence, or insofar as means of challenge or defence of which the intervening third party was unaware were not lodged by the primary party, either intentionally or through its grossly negligent fault.
Section 69 Third-party intervention in support of a party to the dispute as a joinder of parties
Insofar as, pursuant to the stipulations of civil law, the legal validity of the decision delivered in the main proceedings has an effect on the legal relationship existing between the third party intervening in support of a party to the dispute and the opponent, the intervening third party shall be deemed to be the joined party of the primary party in the sense as defined by section 61.
Section 70 Accession by the third party intervening in support of a party to the dispute
(1) Should a third party intervene in support of a party to the dispute, it shall accede to the proceedings by submitting a written pleading with the court hearing the case and, where this pleading is joined to the lodgment of an appellate remedy, by submitting a written pleading to the court of appeal. The written pleading is to be served on both parties and must include:
1. The designation of the parties and of the legal dispute;
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2. Exact information regarding the interest of the third party in intervening in support of a party to the dispute;
3. The declaration of accession. (2) Moreover, the general regulations concerning preparatory written pleadings apply.
Section 71 Interlocutory proceedings regarding the third-party intervention in support of a party
to the dispute (1) The decision regarding the petition filed with the court to deny leave to a third party to intervene in support of a party to the dispute shall be handed down following a hearing at which oral argument of the parties and the intervening third party has been heard. The intervening third party shall be admitted to accede to the proceedings provided it has demonstrated its interest in so doing to the satisfaction of the court. (2) A complaint subject to a time limit may be brought against the interlocutory judgment. (3) For as long as the intervention has not been ruled inadmissible in a final and binding judgment, the intervening party will be involved in the main proceedings.
Section 72 Admissibility of third-party notice
(1) Any party believing that it will be able to assert a warranty claim or a claim to indemnification against a third party should the legal dispute’s outcome not be in its favour, or any party concerned that such a claim may be brought against it by a third party, may file third-party notice to that third party with the court until a final and binding judgment has been handed down in the legal dispute. (2) The court and any court-appointed expert shall not be third parties in the sense of the present rule. Section 73 second sentence shall not be applied. (3) The third party is entitled to in turn file third-party notice.
Section 73 Form of filing third-party notice
In order to file third-party notice, the party so filing it is to submit a written pleading in which the reasons for filing such third-party notice and the status of the legal dispute are to be set out. The written pleading is to be served on the third party, and a copy of same is to be communicated to the opponent of the party filing the third-party notice. The third-party notice shall become valid only upon its having been served on the third party.
Section 74 Effects of the third-party notice
(1) Where the third party accedes to the party filing third-party notice, its relationship to the parties shall be determined in accordance with the principles applying to the third-party intervention in support of a party to the dispute. (2) If the third party refuses to accede to the proceedings, or if it fails to react in substance, the legal dispute will be continued without its interests being taken into consideration. (3) In all cases provided for by this section, the stipulations of section 68 are to be applied against the third party, with the rule being departed from insofar as, instead of the time at which the third party accedes to the proceedings, that point in time is relevant at which the accession was made possible by the third-party notice.
Section 75 Interpleader sought by the defendant
Where a debtor who has been sued serves third-party notice upon a third party, asserting that he is entitled to the claim brought, and where the third party accedes to the dispute, the defendant is to be released from the legal dispute, upon his filing the corresponding petition, provided that he has lodged the amount of the claim to the benefit of the creditors who are in
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dispute, and has waived the right to take this amount back; the defendant is to be sentenced to pay the costs arising as a consequence of any unfounded objection, and litigation as to entitlement to the claim is to be continued among the disputing creditors alone. The prevailing creditor shall be awarded the amount lodged, and the creditor who has not been able to enforce his claim in the dispute shall be sentenced to reimbursing the original defendant for the costs that were not caused by his unfounded objection, including the lodgment costs of the amount in dispute.
Section 76 Laudatio auctoris in cases involving possession
(1) Anyone who has been sued as the possessor of an object that he alleges to possess based on a legal relationship of the kind designated in section 868 of the Civil Code (Bürgerliches Gesetzbuch, BGB) may petition that the constructive possessor be summoned to allow him to react in substance; he must do so prior to the hearing on the merits of the case by submitting a written pleading naming the constructive possessor, and by submitting a third–party notice. Until such reaction in substance, or until the closure of the hearing at which the identified party is to so react in substance, the defendant may refuse to allow the matter to be heard on its merits. (2) Should the party so identified dispute the allegation made by the defendant, or should it fail to react in substance, the defendant shall be entitled to comply with the demand for relief as brought. (3) Where the identified party acknowledges that the allegation made by the defendant is correct, the identified party shall be entitled to assume the proceedings in the stead of the defendant and with the defendant’s consent. Any consent by the plaintiff shall be required only insofar as he is bringing claims independently of the fact that the defendant is a possessor based on a legal relationship of the kind designated in subsection (1). (4) Should the party identified have assumed the proceedings, the defendant is to be released from the complaint upon his filing the corresponding petition. The decision handed down by the court is also valid and enforceable against the defendant where the subject matter as such is concerned.
Section 77 Laudatio auctoris in cases involving impaired ownership
If the owner of an object has filed suit due to an impairment of his ownership, or if the party entitled to a right in such an object has filed suit due to an impairment of its right, and has made the demand that the impairment cease or that further impairments be desisted from, the stipulations of section 76 shall apply mutatis mutandis where the defendant alleges that he has caused the impairment by way of exercising the right of a third party.
Title 4 Attorneys of record and counsel
Section 78 Proceedings in which the parties must be represented by counsel
(1) The parties to disputes before the regional courts (Landgerichte, LG) and the higher regional courts (Oberlandesgerichte, OLG) must be represented by an attorney. Where, based on section 8 of the Introductory Law of the Courts Constitution Act (Einführungsgesetz zum Gerichtsverfassungsgesetz), a Land has established a supreme court for its territory, the parties to a dispute must likewise be represented by an attorney before this court as well. In proceedings before the Federal Court of Justice (Bundesgerichtshof, BGH), the parties to the dispute must be represented by an attorney admitted to practice before said court. (2) Public authorities and legal persons under public law, including the co-operation groupings they may form by way of fulfilling their tasks as governed by public law, may have themselves represented by their own employees who are qualified to hold judicial office, or by employees who are qualified to hold judicial office and who are working with other public
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authorities or legal persons under public law, including the co-operation groupings they may form by way of fulfilling their tasks as governed by public law. (3) These rules are not to be applied to proceedings before a judge correspondingly delegated or requested, nor are they to be applied to actions in the proceedings that may be taken before the records clerk of the court registry. (4) Any attorney authorised to represent parties before the courts in accordance with the stipulations of subsections (1) and (2) may represent himself.
Section 78a (repealed)
Section 78b Attorney appointed by the court in keeping with statutory requirements
(1) Insofar as representation by an attorney is mandated and a party is unable to find an attorney prepared to represent it, the court hearing the case of the party may, by order, assign an attorney as counsel to that party, upon its having filed the corresponding petition, who is admitted to practice before the court of that level of jurisdiction, and who is to exercise that party’s rights, provided that the action brought by the party or the defence against an action brought by others does not seem frivolous or without any prospects of success. (2) A complaint subject to a time limit may be lodged against the order by which the assignment of an attorney is refused.
Section 78c Selection of the attorney
(1) The attorney to be assigned as counsel pursuant to section 78b will be selected by the presiding judge of the court from among the attorneys established in the judicial district of the court hearing the case. (2) The attorney assigned as counsel may make his acceptance dependent on the party paying an advance, the amount of which is to be computed in accordance with the Act on the Remuneration of Attorneys (Rechtsanwaltsvergütungsgesetz, RVG). (3) A complaint subject to a time limit may be filed by the party, and likewise by the attorney, against a ruling handed down pursuant to subsection (1). The attorney shall also be entitled to file a complaint subject to a time limit if the presiding judge of the court refuses to comply with the petition that the attorney’s assignment as counsel to the party be cancelled (section 48 (2) of the Bundesrechtsanwaltsordnung (BRAO, Federal Act on the Profession of Attorneys)).
Section 79 Proceedings the parties may pursue without being represented by counsel
(1) To the extent representation by attorneys is not mandated, the parties to the dispute may pursue the legal dispute themselves. Parties asserting a third-party monetary claim, or a monetary claim assigned to them for the purpose of collecting the claim on another’s account, must be represented by counsel as attorneys-in-fact unless they are authorised, pursuant to the stipulations of subsection (2), to represent the creditor, or unless they are collecting a claim of which they were the original creditor. (2) The parties may have themselves represented by counsel as attorneys-in-fact. Above and beyond this, the following are authorised to represent parties as attorneys-in-fact:
1. Employees of the party or of a company affiliated with it (section 15 of the Stock Corporation Act (Aktiengesetz, AktG)); public authorities and legal persons under public law, including the co-operation groupings they may form by way of fulfilling their tasks as governed by public law, may also have themselves represented by employees of other public authorities or legal persons under public law, including the co-operation groupings they may form by way of fulfilling their tasks as governed by public law;
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2. Family members of full legal age (section 15 of the Fiscal Code (Abgabenordnung, AO), section 11 of the Act on Civil Unions (Lebenspartnerschaftsgesetz, LPartG)), persons who are qualified to hold judicial office and joined parties, provided that the representation is not connected to any activities performed against payment;
3. Consumer centres and other publicly subsidised consumer associations, where they are collecting claims of consumers in the context of their scope of responsibilities;
4. Persons providing collection services (registered persons pursuant to section 10 (1), first sentence, number 1 of the Legal Services Act (Rechtsdienstleistungsgesetz, RDG)) in summary proceedings for a payment order until the matter is transferred to the court hearing the dispute, in the case of petitions for a declaration of enforceability in compulsory enforcement proceedings against movable property for monetary claims, including proceedings for the administration of a statutory declaration in lieu of an oath and for an application for the issuance of an arrest warrant, in each case to the exception of procedural actions that initiate legal proceedings determining whether or not a claim is justified, or actions that are to be taken within such legal proceedings.
Attorneys-in-fact who are not individuals will act through their governing bodies and the representatives charged with representing them in the proceedings. (3) The court will refuse to accept attorneys-in-fact who do not have the power of representation as stipulated by subsection (2); the corresponding order is incontestable. Actions taken in the proceedings by an attorney-in-fact who does not have the power of representation, as well as the service of documents on this attorney-in-fact, or notice given to him, will be valid until the date on which the court refuses to accept him. The court may prohibit the attorneys-in-fact designated in subsection (2), second sentence, numbers 1 to 3, by incontestable order, from continuing to represent the party should they be unable to appropriately depict the circumstances and facts as well as the relationship of the parties to the dispute. (4) Judges may not appear as attorneys-in-fact before a court of which they are a member. Honorary lay judges may not appear before a formation of the court of which they are a member, to the exception of the cases provided for by subsection (2), second sentence, number 1. Subsection (3) sentences 1 and 2 shall apply mutatis mutandis.
Section 80 Power of attorney for proceedings
The power of attorney is to be submitted in writing for the files of the court. It may be submitted retroactively; the court may determine a time limit in this regard.
Section 81 Scope of the power of attorney for proceedings
The power of attorney for proceedings authorises the bearer to take all actions concerning the legal dispute in the proceedings, including those that are occasioned by countercharges being brought, by proceedings being reopened, by an objection being lodged pursuant to section 321a, and by compulsory enforcement; it further authorises the bearer to appoint a representative as well as an attorney-in-fact for the courts of higher instance; to bring the legal dispute to a close by settlement, to waive the subject matter of the litigation, or to recognise the claim being enforced by the opponent; to take possession of the cost reimbursement made by the opponent or the Treasury.
Section 82 Power of attorney valid for collateral proceedings outside of the actual litigation
The power of attorney for the main proceedings comprises the power of attorney for proceedings in which a third-party intervention is pursued by bringing an action against the
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two parties to a pending lawsuit, as well as for proceedings concerning a seizure or an injunction.
Section 83 Limitation of the power of attorney for proceedings
(1) Any limitation of the statutory scope of the power of attorney will have legal effect vis-à- vis the opponent only insofar as this limitation concerns the termination of the legal dispute by settlement, a waiver of the subject matter of the litigation, or the opponent’s recognition of the claim being enforced. (2) To the extent representation by attorneys is not mandated, a power of attorney may be issued for individual actions to be taken in the proceedings.
Section 84 Plurality of attorneys of record
Where several attorneys of record have been authorised, they shall have the right to represent the party both jointly and individually. Any stipulation in the power of attorney in derogation herefrom will not have any legal effect vis-à-vis the opponent.
Section 85 Effect of the power of attorney for proceedings
(1) The procedural actions taken by the party’s attorney of record shall bind the party in the same manner as if the party itself had taken these actions. This applies to admissions and any other declarations as to fact insofar as they are not immediately recanted or corrected by the party appearing at the hearing along with his representatives. (2) Any fault of the attorney of record shall be equivalent to a fault of the party. Footnote Section 85 (2): Depending on the operative part of the judgment, this complies with the German Constitution (Grundgesetz, GG), pursuant to the ruling of 20 April 1982 I 1169 – 2 BvL 26/81 – handed down by the Federal Constitutional Court and published in Entscheidungen des Bundesverfassungsgerichts (BVerfGE).
Section 86 Continuation in force of the power of attorney for proceedings
The power of attorney will be cancelled neither by the death of the grantor of the power of attorney, nor by any change in his capacity to sue and be sued or in his legal representation; however, the attorney-in-fact is to submit to the court the power of attorney granted to him by the successor should he appear in the legal dispute on the successor’s behalf after the suspension of the legal dispute has ceased.
Section 87 Expiry of the power of attorney
(1) The termination of an agreement governing a power of attorney will take legal effect vis- à-vis the opponent only upon notification being made that the power of attorney has expired; in proceedings in which the parties must be represented by counsel, it will so take effect only upon notification as to another attorney having been appointed. (2) A termination by the attorney-in-fact himself will not prevent him from acting on behalf of the grantor of the power of attorney until the latter has otherwise ensured the protection of its interests under law.
Section 88 Lack of power of attorney
(1) Where a power of attorney is lacking, the opponent may file an objection, regardless of the status of the legal dispute. (2) The court is to take account of the lack of power of attorney ex officio, unless an attorney is acting as the attorney-in-fact.
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Section 89 Representative without a power of attorney
(1) Where a person acts on behalf of a party as a negotiorum gestor (person acting on behalf of another without having been granted express authority to do so), or as an attorney-in-fact, without submitting a power of attorney to the court, he may be admitted to the litigation on a preliminary basis against or without provision of security for costs and damages. The final judgment may be delivered only after the period for submitting the approval has expired. Should the approval not have been submitted by the time the final judgment is delivered, the person admitted to the litigation on a preliminary basis is to be sentenced to compensating the opponent for the costs he has had to incur as a result of the former’s admission to the litigation; moreover, he is to compensate the opponent for the damages the latter has suffered as a result of such admission. (2) The party must allow the case against it to be conducted in this manner if it has granted the power of attorney only orally, or if it has expressly or tacitly approved the litigation.
Section 90 Advisers
(1) The parties to the dispute may appear at the hearing in the company of advisers. Anyone may be an adviser who is authorised to represent a party as an attorney-in-fact in a hearing in proceedings in which the party may pursue the legal dispute itself. The court may admit other persons as advisers provided this serves the purpose intended, and provided the circumstances of the individual case indicate that a corresponding need exists. Section 79 (3) sentences 1 and 3 and (4) shall apply mutatis mutandis. (2) The statements made by advisers shall be deemed to be submissions by the party unless the latter immediately recants or corrects such statements.
Title 5 Costs of the proceedings
Section 91 Principle of the obligation to bear costs; scope of this obligation
(1) The party that has not prevailed in the dispute is to bear the costs of the legal dispute, in particular any costs incurred by the opponent, to the extent these costs were required in order to bring an appropriate action or to appropriately defend against an action brought by others. The compensation of costs also comprises compensation of the opponent for any necessary travel or for time the opponent has lost by having been required to make an appearance at hearings; the rules governing the compensation of witnesses shall apply mutatis mutandis. (2) In all proceedings, the statutory fees and expenditures of the attorney of the prevailing party are to be compensated. However, the travel expenses of an attorney who has not established himself in the judicial district of the court hearing the case, and who does not reside at the location of the court hearing the case, shall be compensated only insofar as it was necessary to involve him in order to bring an appropriate action, or to appropriately defend against an action brought by others. The costs of retaining several attorneys shall be compensated only insofar as they do not exceed the costs of a single attorney, or insofar as personal reasons required an attorney to be replaced by another. Where an attorney represents himself, he shall be reimbursed for those fees and expenditures that he could demand as fees and expenditures had he been granted power of attorney to represent another party. (3) The costs of the legal dispute in the sense as defined by subsections (1) and (2) also include the fees arising as a result of conciliation proceedings before a dispute-resolution entity established or recognised by a Land department of justice (Landesjustizverwaltung); this shall not apply if a period longer than one year has lapsed between the date on which the conciliation proceedings ended and the date on which proceedings were brought in the courts.
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(4) The costs of the legal dispute in the sense of subsection (1) also include costs that the prevailing party has paid to the party that has not prevailed in the course of the legal dispute.
Section 91a Costs where the main action has been dealt with and terminated
(1) Where the parties to the dispute declare the matter terminated in the hearing, or make such declaration in a written pleading, or by recording it with the registry for the files of the court, the court shall issue, at its equitably exercised discretion, an order on the costs, taking account of the circumstances and facts as well as the status of the dispute thus far. The same shall apply if the defendant fails to oppose, within a statutory period of two (2) weeks from service of the written pleading, the plaintiff’s declaration as to the matter having been dealt with and terminated, provided that this consequence was indicated to the defendant previously. (2) A complaint subject to a time limit may be lodged against the decision. This shall not apply where the value of the claim in the main action is equal to or lower than the amount specified in section 511. The court is to hear the opponent prior to handing down its decision on the complaint.
Section 92 Costs in the event a party prevails in part
(1) Where each of the parties has prevailed for a part of its claim, but has not been able to enforce another part of its claim in the dispute, the costs are to be cancelled against each other, or they are to be shared proportionately. If the costs have been cancelled against each other, the parties shall bear the court costs at one half each. (2) The court may impose the entire costs of the proceedings on one of the parties if:
1. The amount the other party claimed in excess was relatively small, or has resulted in only slightly higher costs, or
2. The amount of the claim brought by the other party depended on the judges determining it at their discretion, on the assessment by experts, or on the parties settling their reciprocal claims.
Section 93 Costs in the event an immediate acknowledgment is made
Where the defendant has not given cause for an action to be brought, the plaintiff shall bear the costs of the proceedings should the defendant immediately acknowledge the claim.
Section 93a (repealed)
Section 93b Costs of actions brought for the vacation of premises
(1) Where a court finds for the party filing a complaint for the vacation of residential premises, taking account of the fact that due to the legitimate interests of the plaintiff, the defendant’s demand to continue the tenancy relationship is not justified in light of the stipulations of sections 574 to 574b of the Civil Code (Bürgerliches Gesetzbuch, BGB), the court may impose on the plaintiff the costs in their entirety or in part should the defendant have demanded the continuation of the tenancy relationship and provided reasons for doing so, and where the plaintiff prevails for reasons that have arisen only subsequently (section 574 (3) of the Civil Code (BGB)). This shall apply mutatis mutandis to any legal dispute for continuation of the tenancy relationship where the complaint is dismissed. (2) If a complaint brought for the vacation of residential premises is dismissed and the ruling determines that, in keeping with the defendant’s demand, the tenancy relationship is to continue in light of the stipulations of sections 574 to 574b of the Civil Code (Bürgerliches Gesetzbuch, BGB), the court may impose on the defendant the costs in their entirety or in part should the defendant have failed to immediately comply with the plaintiff’s demand to
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provide the reasons for his opposition. This shall apply mutatis mutandis to any legal dispute for continuation of the tenancy relationship where the court finds for the party filing the complaint. (3) In the event the defendant immediately acknowledges the claim to vacation of the residential premises, but a period is granted within which he may so vacate them, the court may impose on the plaintiff the costs in their entirety or in part if the defendant had already requested of the plaintiff, prior to the complaint being brought, that the tenancy relationship continue, or that a period for clearing the premises that is reasonable under the circumstances be granted, without this request having met with success.
Section 93c (repealed)
Section 93d (repealed)
Section 94 Costs where claims have devolved upon others
In cases in which the plaintiff asserts and files a claim that has devolved upon him, without having informed the defendant of such devolution prior to bringing the proceedings in the courts, he shall bear the costs of the proceedings insofar as they have arisen because the defendant had cause to dispute the claim as the plaintiff had failed to so give notice of the devolution, or to prove it by supporting documents.
Section 95 Costs in the event of failure to comply with procedural rules or of fault
The party that fails to attend a hearing or to meet a deadline shall bear the costs arising therefrom; this shall also apply if the party, through its fault, has caused a hearing to be deferred or a hearing for oral argument to be postponed, or if it has caused a hearing to be arranged at which the hearing for oral argument is to be continued, or a period to be extended.
Section 96 Costs of means of challenge or defence that have not met with success
Where the means of challenge or defence brought have not met with success, their costs may be imposed on the party that has availed itself of such means, even in those cases in which it has prevailed on the merits of the case.
Section 97 Costs of appellate remedies
(1) The costs of appellate remedies that have been sought without success shall be borne by the party that has lodged the remedy. (2) The costs of the appellate proceedings shall be imposed on the prevailing party in their entirety or in part if it has prevailed by reason of a new submission that it would have been able to assert and file at a prior level of jurisdiction. (3) (repealed)
Section 98 Costs of settling a matter
The costs of any settlement shall be deemed to have been cancelled against each other unless otherwise agreed by the parties to the dispute. The same shall apply regarding the costs of the legal dispute that has been dealt with and terminated by settlement, unless a final and binding decision has been delivered in their regard.
Section 99 Contestation of rulings on the payment of costs
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(1) A ruling on the payment of costs may not be admissibly contested unless an appeal is filed against the decision taken on the merits of the case. (2) If the main action has been dealt with and terminated by a sentence that is based on an acknowledgment, a complaint subject to a time limit may be lodged against the ruling on the payment of costs. This shall not apply where the value of the claim in the main action is not higher than the amount specified in section 511. The opponent is to be heard prior to the decision being taken on the complaint.
Section 100 Costs as borne by joined parties
(1) Should the party that has not prevailed before the court consist of a plurality of persons, they shall be liable for the compensation of costs on a per capita basis. (2) If the joined parties’ participation in the legal dispute differs significantly, the court may decide at its discretion to base its ruling on such participation. (3) Where a joined party has availed itself of a special means of challenge or defence, the remaining joined parties shall not be liable for the costs engendered thereby. (4) In the event that several defendants are sentenced as joint and several debtors, they shall also be liable for the compensation of costs as joint and several debtors, notwithstanding the rule set out in subsection (3). The stipulations under civil law, according to which this liability extends to the costs designated in subsection (3), shall remain unaffected hereby.
Section 101 Costs of a third-party intervention in support of a party to the dispute
(1) The costs entailed by a third-party intervention in support of a party to the dispute are to be imposed on the opponent of the primary party to the extent he is to bear the costs of the legal dispute in accordance with the stipulations of sections 91 to 98; insofar as this is not the case, they are to be imposed on the third party intervening in support of a party to the dispute. (2) Where the third party intervening in support of a party to the dispute is deemed to be a joined party of the primary party (section 69), the stipulations of section 100 shall govern.
Section 102 (repealed)
Section 103 Basis for the assessment of costs; petition for the assessment of costs
(1) A claim to reimbursement of the costs of the proceedings may be asserted only based on a legal document (title) suited for compulsory enforcement. (2) The petition for assessment of the amount to be reimbursed is to be filed with the court of first instance. The computation of the costs, the copy intended for forwarding to the opponent, and the proof serving to justify the individual cost items are to be attached to the petition.
Section 104 Procedure for the assessment of costs
(1) The court of first instance is to rule on the petition regarding the assessment of costs. Upon this petition being filed, the court is to rule that, from the date on which the petition regarding the assessment of costs is received, and, in the case provided for by section 105 (3), from the date on which the judgment is pronounced, the costs assessed are to bear interest at five percentage points above the base rate of interest in accordance with section 247 of the Civil Code (Bürgerliches Gesetzbuch, BGB). Where the petition is complied with fully or in part, the decision is to be served ex officio on the opponent of the petitioner, with a copy of the computation of the costs being enclosed. The decision is to be served ex officio on the petitioner only in those cases in which the petition is dismissed as a whole or in part; in all other instances, the decision shall be communicated by simple letter.
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(2) In order for a cost item to be considered, it shall suffice for it to have been substantiated. As regards the expenditures an attorney has incurred for postage and telecommunications services, his assurance that such expenditures have been incurred shall be sufficient substantiation. In order for turnover tax amounts to be considered, the petitioner’s declaration that he is unable to deduct such amounts as input taxes shall be sufficient substantiation. (3) A complaint subject to a time limit may be lodged against the decision. The court with which the complaint is lodged may suspend the proceedings until the decision on which the petition for assessment of costs is based has become final and binding.
Section 105 Simplified cost-assessment order
(1) The court order assessing the costs may be included in the judgment and the execution copies, provided that no execution of the ruling has yet been issued at the time the petition is filed, and provided that this does not entail any delay for the execution. Should the court order assessing the costs be issued in the form stipulated by section 130b, it is to be recorded in a separate electronic document. The document is to be joined to the judgment such that it cannot be separated. (2) No separate execution and service of the court order assessing the costs shall be made in the cases provided for by subsection (1). The amount assessed shall be communicated to the parties, with a copy of the computation of costs being attached to the communication made to the petitioner’s opponent. The court order assessing the costs shall not be joined to the judgment where the petition regarding the assessment of costs is not complied with, and also where it is not complied with only in part. (3) No petition regarding the assessment of costs need be filed if the party has submitted the computation of its costs prior to the judgment being pronounced; in such event, the copy of the computation of the costs to be communicated to the opponent is to be prepared ex officio.
Section 106 Cost allocation according to quotas
(1) In cases in which the costs of the proceedings are allocated, in their entirety or in part, according to quotas, the court is to demand of the opponent, upon receipt of the petition regarding the assessment of costs, that it submit the computation of its costs to the court within one (1) week. The stipulations of section 105 are not to be applied. (2) Once the one-week period has expired without success, the decision shall be given without consideration of the opponent’s costs, notwithstanding the latter’s right to retroactively file a claim to reimbursement. The opponent shall be liable for the additional costs arising as a result of the proceedings for retroactive reimbursement.
Section 107 Change based on an assessment of the value of the claim
(1) Should, following the assessment of the costs, a decision be given by the court assessing the value of the subject matter being litigated, the cost assessment is to be changed accordingly insofar as the court’s decision deviates from the computation of the value on which the assessment of the costs is based, upon corresponding application being made. The court of first instance shall decide on said application. (2) The application is to be filed with the court registry within the one-month period. The period shall commence upon service of the order assessing the value of the subject matter being litigated and, where no such service is required, upon its pronouncement. (3) The stipulations of section 104 (3) are to be applied.
Title 6 Provision of security
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Section 108 Nature and amount of the security
(1) In those cases in which security is to be provided in the proceedings, the court may at its sole discretion determine the nature of such security and the amount in which it is to be provided. Unless the court has made provisions in this regard, and unless the parties to the dispute have not agreed otherwise, the security is to be provided in the form of an irrevocable and unconditional guaranty of unlimited term, issued in writing, by a financial institution authorised to pursue its business in Germany, or by lodging cash or such securities that are suited to serve as security pursuant to section 234 (1) and 3 of the Civil Code (Bürgerliches Gesetzbuch, BGB). (2) The stipulations of section 234 (2) and of section 235 of the Civil Code (Bürgerliches Gesetzbuch, BGB) shall apply mutatis mutandis.
Section 109 Return of the security
(1) Where the cause for providing security has ceased to exist, the court that has directed that security be provided, or permitted such provision of security, shall determine a period, upon corresponding application being made, within which the party to whose benefit the security was provided is to declare its consent to returning the security, or within which such party is to provide supporting documentary proof that it has brought proceedings in the courts for its claims. (2) Upon this period expiring, and upon corresponding application being made, the court shall order that the security be returned, unless it is proven in the meantime that the proceedings have been brought in the courts; if the security has been provided as a bond, the court shall order the bond to expire. The order shall become effective only once it has become final and binding. (3) The applications for the return of the security, and the consent thereto, may be recorded with the registry for the files of the court. The decisions are issued by a court order. (4) The applicant may file a complaint subject to a time limit against the order by which the application provided for in subsection (1) is rejected, while both parties may file a complaint subject to a time limit against the decision designated in subsection (2).
Section 110 Security deposit for the costs of the proceedings
(1) Plaintiffs who do not have their habitual place of abode in a Member State of the European Union or in a signatory state of the Agreement on the European Economic Area shall provide security for the costs of the proceedings should the defendant so demand. (2) This obligation shall not be given:
1. Where, due to international treaties, no such security deposit may be demanded;
2. Where the decision as to the defendant’s reimbursement of the costs it has incurred in the proceedings would be enforced based on international treaties;
3. Where the plaintiff possesses real estate assets, or claims secured in rem, in Germany that suffice to cover the costs of the proceedings;
4. Where countercharges are brought;
5. Where proceedings have been brought in the courts based on public notice given by a court.
Section 111 Retroactive demand for a security deposit for the costs of the proceedings
The defendant may demand a security deposit to be made for the costs of the proceedings if the prerequisites for such an obligation to provide security arise only in the course of the
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legal dispute, unless a part of the claim brought before the courts is undisputed among the parties and would suffice to cover such costs.
Section 112 Amount of the security deposit for the costs of the proceedings
(1) The amount of the security to be provided shall be assessed by the court at its sole discretion. (2) In so assessing the amount of the security, the costs of the proceedings are to be based on that amount that the defendant will likely have to pay. The costs that will accrue to the defendant if it brings countercharges shall not be taken into account in this context. (3) Should it become apparent in the course of the legal dispute that the security provided will not suffice, the defendant may demand further security, provided that no part of the claim brought before the courts that would suffice to cover such costs is undisputed among the parties.
Section 113 Determination of the deadline by which the security deposits for the costs of the
proceedings are to be provided In issuing the order that the plaintiff is to provide security, the court is to determine a period within which the security is to be provided. Upon the period expiring, and upon a corresponding application being made by the defendant, the action is to be declared as having been withdrawn if the security has not been provided by the date of the decision by the court; in the event oral argument is to be heard regarding appellate remedies sought by the plaintiff, these remedies are to be overruled.
Title 7 Assistance with court costs; advance on the costs of litigation
Section 114 Prerequisites
(1) Any parties who, due to their personal and economic circumstances, are unable to pay the costs of litigation, or are able to so pay them only in part or only as instalments, will be granted assistance with the court costs upon filing a corresponding application, provided that the action they intend to bring or their defence against an action that has been brought against them has sufficient prospects of success and does not seem frivolous. Wherever the present title is silent, sections 1076 through 1078 shall apply to assistance with court costs in cross-border disputes within the European Union. (2) The action being brought or the defence against an action is frivolous where a party that has not taken recourse to assistance with the court costs would desist, upon having judiciously assessed all circumstances, from bringing an action or defending against an action in spite of sufficient prospects of succeeding.
Section 115 Use of income and assets
(1) The parties are to use their income. The term “income” comprises all earnings in money or in money’s worth. The following are to be deducted in determining the parties’ income:
1.
a) The amounts designated in section 82 (2) of Book XII of the Social Code (Sozialgesetzbuch Teil XII, SGB XII);
b) For parties earning an income from economic activities, an amount of 50 percent of the maximum standard rate initially assessed or later updated for the single, or single-parent, beneficiary of benefits granted under stage 1 standard support needs pursuant to the annex to section 28 of Book XII of the Social Code (SGB XII);
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2.
a) For the party and the party’s spouse or partner under a civil union, the amount of the maximum standard rate initially assessed or later updated for the single, or single-parent, beneficiary of benefits granted under stage 1 standard support needs pursuant to the annex to section 28 of Book XII of the Social Code (SGB XII), increased in each case by 10 percent;
b) In the event of further maintenance payments being made based on a statutory obligation to pay such maintenance, for each person entitled to maintenance, in each case the amount of the maximum standard rate initially assessed or later updated for the person of the corresponding age entitled to benefits granted under standard support needs of stages 3 to 6 pursuant to the annex to section 28 of Book XII of the Social Code (SGB XII), increased in each case by 10 percent;
3. The costs of residential accommodation and heating costs, insofar as they are not obviously disproportionate to the general life circumstances of the party concerned;
4. Extra allowances for additional needs pursuant to section 21 of Book II of the Social Code (SGB II) and pursuant to section 30 of Book XII of the Social Code (SGB XII);
5. With a view to special obligations to which the party is subject, further amounts as appropriate; section 1610a of the Civil Code (Bürgerliches Gesetzbuch, BGB) shall apply mutatis mutandis.
The amounts in force at the time at which assistance with court costs is approved shall govern. The Federal Ministry of Justice publishes, in the Federal Law Gazette (Bundesgesetzblatt, BGBl.), the amounts initially assessed or later updated in accordance with the third sentence hereinabove at number 1 lit. b and with number 2. Where these amounts are not full amounts in euros, they are to be rounded down where they are equal to 0.49 euros and less, and shall be rounded up where they are equal to 0.50 euros and higher. The maintenance allowance amounts stipulated by the third sentence hereinabove at number 2 shall be reduced by the income earned by the person entitled to maintenance. Should an annuity be paid, it is to be deducted instead of the allowance amount wherever reasonable. (2) Out of that part of the monthly income remaining after deductions (“income to be used”), monthly instalments are to be assessed in the amount of half of the income to be used; such monthly instalments are to be rounded down to a full amount in euros. Where the amount of a monthly instalment is lower than 10 euros, the assessment of monthly instalments is to be desisted from. Where the income to be used is greater than 600 euros, the monthly instalment shall amount to 300 euros plus that part of the income to be used that is in excess of 600 euros. As a maximum, and regardless of the number of court instances in which the proceedings are pursued, a maximum of 48 monthly instalments are to be paid. (3) The party is to use its assets to the extent this can reasonably be expected of it. Section 90 of Book XII of the Social Code (SGB XII) shall apply mutatis mutandis. (4) Assistance with court costs will not be approved if it can be foreseen that the party’s costs of litigation will not be higher than four (4) monthly rates and will not exceed the partial amounts to be contributed from the party’s assets.
Section 116 Party by virtue of an office; legal person; organisations having the capacity to be a
party Upon corresponding application being made, assistance with court costs shall be approved for parties:
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1. Who are a party by virtue of their office, if the costs cannot be funded from the available assets administered by that party and it cannot reasonably be expected of the parties economically involved in the subject matter in dispute to contribute to the payment of these costs;
2. Who are a legal person or an organisation that has the capacity to be a party and that was established in Germany, in another Member State of the European Union, or in any other signatory state of the Agreement on the European Economic Area, and which have their registered seat there, if the costs cannot be funded by that party nor by the parties economically involved in the subject matter in dispute, and if any failure to bring an action or to defend against an action that has been brought would contradict the public interest.
Section 114 subsection (1), first sentence, last clause of the sentence, and subsection (2) are to be applied. Should the costs be funded only in part or in partial amounts, the corresponding amounts are to be paid.
Section 117 Application
(1) The application for approval of assistance with court costs is to be submitted to the court hearing the case; it may be recorded with the registry for the files of the court. The application is to summarise the case and is to cite the evidence. The application for approval of assistance with court costs in the event of compulsory enforcement is to be filed with the court having jurisdiction for compulsory enforcement. (2) With the application, the party is to include a declaration describing his personal and economic circumstances (family circumstances, profession, assets, income and financial obligations), and is to attach the corresponding proof to same. The declaration and the proof may be made accessible to the opponent in the proceedings only upon the party having consented to this being done, unless the opponent is entitled, vis-à-vis the applicant, to be informed of the applicant’s earnings and assets pursuant to the stipulations of civil law. Prior to his declaration being forwarded to the opponent, the applicant is to be given the opportunity to state his position. The applicant is to be informed of the fact that the declaration has been forwarded. (3) In the interests of simplifying and streamlining the procedure, the Federal Ministry of Justice is authorised to introduce forms for the declaration, such forms being subject to approval by the Bundesrat and being made by statutory instrument. Such forms also contain the instructions required pursuant to section 120a (2), fourth sentence. (4) Insofar as such forms have been introduced for the declaration, the party must use them.
Section 118 Approval procedure
(1) The opponent is to be given the opportunity to state his position as to whether or not he believes the pre-requisites for approving assistance with court costs have been met, unless this is deemed inappropriate for special reasons. This position statement may be recorded with the registry for the files of the court. If it is to be expected that the parties will settle, the court may summon the parties to the dispute for a discussion of the matter in person; the court is to record any settlement reached. Any costs incurred by the opponent will not be reimbursed. The expenditures incurred in the course of examining witnesses and experts pursuant to subsection (2), third sentence, shall be borne as court costs by the party on whom the costs of the legal dispute have been imposed. (2) The court may demand that the applicant substantiate the information he has provided on the facts and circumstances of the case, and specifically may demand that a statutory declaration in lieu of an oath be made. It may order information to be procured from the authorities, and it may in particular order the submission of records and procure information. No witnesses or experts shall be examined, unless it cannot be established by any other means whether or not the action brought by a party, or the defence against an action brought
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by others against it, holds out sufficient prospects of success and does not seem frivolous; none of the parties shall be placed under oath. Should, within a period set by the court, the applicant fail to substantiate information he has provided regarding his personal and economic circumstances, or should he fail to answer certain questions, or not answer them to the satisfaction of the court, the court shall refuse to approve assistance with court costs in this regard. (3) The measures set out in subsections (1) and (2) shall be taken by the presiding judge or by a member of the court accordingly delegated by the presiding judge.
Section 119 Approval
(1) Assistance with court costs shall be approved separately at each level of jurisdiction. Wherever the opponent has filed an appeal, it shall not be reviewed at any higher level of jurisdiction whether the action brought by a party, or the defence against an action brought by others, holds out sufficient prospects of success or seems frivolous. (2) An approval of assistance with court costs granted for compulsory enforcement against movable property shall comprise all enforcement measures in the judicial district of the court responsible for the enforcement, including the procedure for statutory declarations in lieu of an oath.
Section 120 Assessment of payments
(1) In approving assistance with court costs, the court shall assess the monthly instalments and amounts to be paid out of the assets. Should, in light of special obligations being given, the court deduct amounts from the income in accordance with section 115 (1), third sentence, number 5, and should it be reasonable to assume that upon the expiry of four (4) years, these obligations will have ceased either entirely or in part, the court shall concurrently assess the payments also in the amount resulting if the obligations are not taken into account, or only in a reduced scope; moreover, the court shall also determine from which time onwards these latter payments are to be made. (2) The payments are to be made to the Land cash office (Landeskasse), in proceedings before the Federal Court of Justice (Bundesgerichtshof, BGH), they are to be made to the Federal cash office (Bundeskasse) unless assistance with court costs has been approved at a prior level of jurisdiction. (3) The court shall order the payments to be provisionally stayed:
1. If the payments made by the party will cover the costs foreseeably arising;
2. If the party, counsel assigned to it or the Federal cash office or the Land cash office are able to assert the costs against another party involved in the proceedings.
(4) (repealed)
Section 120a Modification of approval
(1) The court is to modify its decision as to the payments to be made if the personal or economic circumstances, based on which assistance with court costs was granted, have undergone a significant change. A change of the authoritative amounts pursuant to section 115 (1), third sentence, number 1 lit. b and number 2 shall be taken into account only upon an application having been filed and only in those cases in which such change results in no monthly instalment needing to be paid. Should the court so demand, the party must disclose at any time whether or not its circumstances have changed. Such change shall not take any effect to the detriment of the party if four (4) years have lapsed since the decision of the court has entered into force or the proceedings have been terminated by other means. (2) Where the economic circumstances of the party have significantly improved prior to the point in time set out in subsection 1, fourth sentence, or where that party’s address changes, it must inform the court of this fact without undue delay. Where the party earns a monthly
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income on a regular basis, the improvement of the income shall be deemed to be significant only if the difference to the gross income thus far serving as the basis is higher than 100 euro, and that on any other than a non-recurrent basis. The second sentence shall apply mutatis mutandis inasmuch as deductible obligations have ceased to exist. When the party files its application, it is to be instructed regarding the above stipulations and regarding the consequences of a violation using the form introduced pursuant to section 117 (3). (3) A party’s economic circumstances may significantly improve in particular as a result of the party obtaining something by the action brought or the defence against an action brought against it. The court is to review, after the ruling has become res judicata or after the proceedings have been otherwise terminated, whether or not a modification of the ruling regarding the payments to be made is required in light of what has been obtained by the action brought or defended against. A modification of the decision is ruled out when the party would have been granted assistance with court costs without having to make payments in instalments, had whatever the party obtained by the action brought or by the defence against an action brought against it been paid or provided in due time. (4) For its declaration regarding the change of its personal or economic circumstances pursuant to subsection (1), third sentence, the party must use the form introduced pursuant to section 117 (3). Section 118 (2) shall apply mutatis mutandis to any review of the personal or economic circumstances.
Section 121 Assignment of counsel
(1) Should the due process of law require parties to be represented by attorneys, the party shall be assigned an attorney as counsel who is willing to so represent the party and whom the party has selected. (2) Should the due process of law not require parties to be represented by attorneys, the party shall be assigned an attorney as counsel who is willing to represent the party and whom the party has selected should such representation by an attorney be deemed necessary in the event the opponent has retained an attorney. (3) An attorney not practising in the judicial district of the court hearing the case may be assigned to the party only if this does not result in further costs. (4) If special circumstances so require, the party may be assigned, upon its having filed a corresponding application, an attorney as counsel who is willing to represent the party and whom the party has selected, in order to make an appearance at a hearing serving the taking of evidence before the requested judge or in order to enable communications with the attorney of record representing the party in the proceedings. (5) Should the party not find an attorney willing to represent it, the presiding judge shall assign an attorney as counsel upon the party having filed the corresponding application.
Section 122 Effect of assistance with court costs
(1) Where assistance with court costs is approved, this will have the effect of:
1. The Federal or Land cash office being able to assert against the party, exclusively in accordance with the provisions made by the court,
a) The court costs and the costs of involving the court-appointed enforcement officer, be they in arrears or accruing in the future,
b) The claims to which the attorneys assigned as counsel are entitled against the party, and which have devolved upon the cash office;
2. Releasing the party from the obligation to provide a security deposit for the costs of the proceedings;
3. Prohibiting the attorneys assigned as counsel from asserting claims to remuneration against the party.
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(2) Should assistance with court costs have been approved for the plaintiff, the plaintiff in the appeal, or the appellant, and should it not have been determined that payments are to be made to the Federal or Land cash office, this will result in the opponent being provisionally exempted from the costs designated in subsection (1) number 1 lit. a.
Section 123 Reimbursement of costs
The approval of assistance with court costs does not affect the obligation to reimburse the opponent for the costs it has incurred.
Section 124 Repeal of the approval
(1) The court is to repeal its approval of assistance with court costs if:
1. The party has misrepresented the prerequisites, based on which an approval of assistance with court costs is granted, by falsely summarising the case;
2. The party has intentionally or grossly negligently made false statements as to its personal or economic circumstances, or has failed to make the disclosure set out in section 120a (1), third sentence, or has not done so to the satisfaction of the court;
3. The party’s personal or economic circumstances did not meet the prerequisites for assistance with court costs; in this case, repealing the approval shall be ruled out if four (4) years have lapsed since the decision of the court has entered into force or the proceedings have been terminated by other means;
4. The party has intentionally or grossly negligently failed to inform the court, contrary to the stipulations of Section 120a (2), first through third sentences, of any significant improvements of its income, assets and financial circumstances, or of a change of address, or has provided incorrect information in this regard;
5. The party has been in arrears for longer than three (3) months with the payment of a monthly instalment or with the payment of any other amount.
(2) The court may reverse its approval of assistance with court costs should the taking of evidence applied for by the party not hold out sufficient prospects of success in light of circumstances which were impossible to take into account at the time the assistance with court costs was approved, or if the offer to submit evidence seems frivolous.
Section 125 Collection of costs
(1) The court costs and the costs of involving the court-appointed enforcement officer may be collected from the opponent only once the decision by which the costs of the proceedings have been imposed on the said opponent has entered into force. (2) The court costs, from the payment of which the opponent is provisionally exempt, are to be collected from the opponent once the decision, by which the costs of the proceedings have been imposed on the opponent, has entered into force or once the legal dispute has been terminated without any ruling having been handed down as to the costs.
Section 126 Recovery of attorneys’ fees
(1) The attorneys assigned to the party are entitled to recover, in their own name, their fees and expenditures from the opponent on whom the costs of the proceedings have been imposed by a corresponding ruling. (2) An objection based on the person of the party is not admissible. The opponent may set off, from any amounts it is to pay, the costs that are to be reimbursed by the party according to the decision as to the costs that is handed down in the same legal dispute.
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Section 127 Decisions
(1) Decisions in the proceedings as to assistance with court costs shall be given without a hearing. The court of first instance is the competent court in this regard; should the proceedings be pending at a higher level of jurisdiction, the court of that instance is the competent court. Insofar as the reasons for the decision include statements as to the party’s personal and economic circumstances, they may be made accessible to the opponent only with the consent of the party. (2) The approval of assistance with court costs may be contested solely subject to the provisions made in subsection (3). In all other regards, a complaint subject to a time limit may be filed; this shall not apply wherever the value of the claim in the main action is not in excess of the amount set out in section 511, unless the court has negated exclusively the personal or economic prerequisites for assistance with court costs. The statutory period shall be one (1) month. (3) The Treasury (Staatskasse) may file a complaint subject to a time limit by way of contesting the approval of assistance with court costs should neither any monthly instalments nor any amounts to be paid from the party’s assets have been assessed. Such contestation may only be based on the fact that the party is to make payments based on its personal and economic circumstances. The statutory period shall be one (1) month and shall begin running upon the court order having been issued. Following the expiry of three (3) months from the pronouncement of the decision, such appeal will no longer be an available remedy. Should the decision not be pronounced, the time at which the signed decision is submitted to the court registry shall take the stead of the pronouncement. The Treasury will not be informed ex officio of the decision. (4) The costs of the complaint procedure will not be reimbursed.
Section 127a (repealed)
Chapter 3 Proceedings
Title 1 Hearing for oral argument
Section 128 Principle of oral argument; proceedings conducted in writing
(1) The parties shall submit their arguments regarding the legal dispute to the court of decision orally. (2) The court may give a decision without hearing oral argument provided that the parties have consented thereto; such consent may be revoked only in the event of a material change to the litigation circumstances. The court shall determine, at its earliest convenience, the deadline for written pleadings to be submitted, and shall determine the date of the hearing on which the decision is to be pronounced. A decision given without a hearing for oral argument is inadmissible should more than three (3) months have lapsed since the parties granted their consent. (3) Should nothing but the costs remain to be ruled on, the decision may be given without a hearing for oral argument being held. (4) Unless determined otherwise, decisions of the court that are not judgments may be given without a hearing for oral argument being held.
Section 128a Hearing for oral argument using image and sound transmission
(1) The court may permit the parties, their attorneys-in-fact ,and advisers, upon their filing a corresponding application or ex officio, to stay at another location in the course of a hearing for oral argument, and to take actions in the proceedings from there. In this event, the
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images and sound of the hearing shall be broadcast in real time to this location and to the courtroom. (2) The court may permit a witness, an expert, or a party to the dispute, upon a corresponding application having been filed, to stay at another location in the course of an examination. The images and sound of the examination shall be broadcast in real time to this location and to the courtroom. Should permission have been granted, pursuant to subsection (1), first sentence, for parties, attorneys-in-fact and advisers to stay at a different location, the images and sound of the examination shall be broadcast also to that location. (3) The broadcast images and sound will not be recorded. Decisions given pursuant to subsection (1), first sentence, and subsection (2), first sentence, are incontestable.
Section 129 Preparatory written pleadings
(1) In proceedings in which the parties must be represented by counsel, the hearing for oral argument will be prepared by written pleadings. (2) In other proceedings, an order given by a judge may direct the parties to prepare the hearing for oral argument by written pleadings, or to record their corresponding declarations with the registry for the files of the court.
Section 129a Petitions and declarations filed for the record
(1) Petitions and declarations that may permissibly be filed or made before the records clerk of the court registry may be so filed or made for the record with the court registry of any local court (Amtsgericht). (2) The court registry is to transmit the record without undue delay to the court that is the addressee of the petition or declaration. A procedural action shall become effective at the earliest when the record is received by that court. Provided that the person so filing the petition or making the declaration for the record has consented, he may be charged with transmitting the record to the court.
Section 130 Content of the written pleadings
The preparatory written pleadings should provide:
1. The designation of the parties and their legal representatives by name, status or business, place of residence and position as a party; the designation of the court and of the subject matter of the litigation; the number of annexes;
2. The petitions that the party intends to file with the court at the session;
3. Information on the factual circumstances serving as grounds for the petitions;
4. The declarations regarding the facts alleged by the opponent;
5. The designation of the evidence that the party intends to submit as proof of any facts alleged, or by way of rebutting allegations, as well as a declaration regarding the evidence designated by the opponent;
6. The signature of the person responsible for the written pleading; if it is transmitted by telefax (telecopier), the signature shall be shown in the copy.
Section 130a Electronic document
(1) Where the written form is required for preparatory written pleadings and their annexes, for petitions of and declarations by the parties as well as for information, testimonies, reports, and declarations by third parties, recording them as electronic documents shall comply with this requirement provided that this is suited for processing by the court. The person responsible for the written pleading is to furnish the document with a qualified electronic
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signature pursuant to the Electronic Signature Act (Signaturgesetz). If an electronic document transmitted is not suited for processing by the court, this shall be communicated to its sender without undue delay, specifying the applicable technical framework conditions. (2) The Federal Government and the Land governments shall determine by statutory instrument, for their respective sphere of responsibility, the point in time from which electronic documents may be submitted to the courts, and shall likewise determine by statutory instrument the form they must have in order to be suited for processing. The Land governments may confer, by statutory instrument, the authorisation upon the Land departments of justice. The admissibility of the electronic form may also be restricted to individual courts or proceedings. (3) An electronic document shall be deemed submitted as soon as the court office designated as the recipient has recorded it.
Section 130b Judicial electronic documents
To the extent the present Code stipulates that judges, senior judicial officers, records clerks of the court registry, or court-appointed enforcement officers are to sign documents by hand, the recording of documents as electronic documents shall comply with this requirement wherever the persons responsible for such documents add their names and furnish the documents with a qualified electronic signature.
§ 130c Forms; authorisation to issue statutory instruments The Federal Ministry of Justice may introduce electronic forms, doing so by statutory instrument; this shall be subject to approval by the Bundesrat. The statutory instrument may determine that the information provided in the forms is to be transmitted, either in its entirety or in part, in structured, machine-readable format. The forms are to be made available for use on a communications platform on the internet determined in the statutory instrument. The statutory instrument may determine that, in derogation from the stipulations of section 130a (3), the identification of the party using the form may also be effected by using the electronic identification document pursuant to section 18 of the Act on Identity Cards (Personalausweisgesetz, PAuswG) or section 78 (5) of the Residence Act (Aufenthaltsgesetz, AufenthG).
Section 131 Attachment of records or documents
(1) The records or documents at hand to the party that are referred to in the preparatory written pleading are to be attached to same as copies. (2) Where only individual parts of a record or document are relevant, attaching excerpts shall meet the above requirement; said excerpts shall set out the introduction, the parts addressing the matter in dispute, the closing of the document, as well as its date and signature. (3) Should the records or documents be known to the opponent already, or should they be very extensive, it shall suffice to exactly specify them and to offer the opportunity to inspect them.
Section 132 Deadlines for written pleadings
(1) Any preparatory written pleading setting out new facts or new, other submissions is to be filed in such due time that it may be served at least one (1) week prior to the hearing scheduled for oral argument. This shall apply to any written pleading that concerns interlocutory proceedings. (2) Any preparatory written pleading submitted in response to new submissions is to be filed in such due time that it may be served at least three (3) days prior to the hearing scheduled
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for oral argument. This shall not apply to any written response made in interlocutory proceedings.
Section 133 Copies
(1) The parties are to attach to the written pleadings they are submitting to the court the number of copies of the written pleadings and their annexes that is required for service of same. This shall not apply to any documents transmitted electronically, nor shall it apply to annexes that are available to the opponent in their original versions or as copies. (2) In the event of documents being served from one attorney on another (section 195), the parties to the dispute are to submit to the court hearing the case, immediately following such service, a copy of their preparatory written pleadings and the annexes.
Section 134 Inspection of records or documents
(1) Wherever a party is asked to do so in due time, it is under obligation to deposit with the court registry any records of documents that it has at hand and that it has referred to in a preparatory written pleading; it shall be obligated to do so prior to the hearing for oral argument, and to inform the opponent that it has so deposited them. (2) The opponent may inspect the records or documents within a period of three (3) days. Upon corresponding application being made, the presiding judge may extend or shorten this period.
Section 135 Communication of records or documents amongst attorneys
(1) The attorneys are free to physically communicate records or documents personally (“von Hand zu Hand”, literally: from one hand to the other) against an acknowledgment of receipt. (2) Where an attorney fails to return a record or document so communicated to him within the period determined, he is to be sentenced, upon corresponding application being made and following a hearing for oral argument, to return such record or document without undue delay. (3) A complaint subject to a time limit may be filed against the interlocutory judgment.
Section 136 Power of the presiding judge to direct the course of the proceedings
(1) The presiding judge shall open the hearings and shall direct their course. (2) He shall grant the right to speak and may deny leave to speak to persons who are not complying with his orders. Should a member of the court so request, he shall allow that member to ask questions. (3) He shall ensure that the matter is discussed exhaustively and that the hearing is continued without interruption until its close; if necessary, he is to immediately determine the session of the court at which the hearing is to be continued. (4) The presiding judge shall close the hearing if, in the opinion of the court, the matter has been comprehensively deliberated, and shall pronounce the rulings and orders of the court.
Section 137 Course of the hearing for oral argument
(1) The hearing is initiated by the parties to the dispute filing their petitions with the court. (2) The parties are to make their submissions ex tempore; they are to summarise the case as regards its facts and circumstances and as regards its legal ramifications. (3) The parties may refer to documents, provided that none of the parties object to this and provided that the court believes such reference is reasonable. Documents will be read out only insofar as their exact wording is relevant. (4) In proceedings in which the parties must be represented by counsel, the attorney and, upon corresponding application being made, the party itself are to be granted leave to speak.
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Section 138 Obligation to make declarations as to facts; obligation to tell the truth
(1) The parties are to make their declarations as to the facts and circumstances fully and completely and are obligated to tell the truth. (2) Each party is to react in substance to the facts alleged by the opponent. (3) Facts that are not expressly disputed are to be deemed as having been acknowledged unless the intention to dispute them is evident from the other declarations made by the party. (4) A party may declare its lack of knowledge only where this concerns facts that were neither actions taken by the party itself, nor within its ken.
Section 139 Direction in substance of the course of proceedings
(1) To the extent required, the court is to discuss with the parties the circumstances and facts as well as the relationship of the parties to the dispute, both in terms of the factual aspects of the matter and of its legal ramifications, and it is to ask questions. The court is to work towards ensuring that the parties to the dispute make declarations in due time and completely, regarding all significant facts, and in particular is to ensure that the parties amend by further information those facts that they have asserted only incompletely, that they designate the evidence, and that they file the relevant petitions. (2) The court may base its decision on an aspect that a party has recognisably overlooked or has deemed to be insignificant, provided that this does not merely concern an ancillary claim, only if it has given corresponding notice of this fact and has allowed the opportunity to address the matter. The same shall apply for any aspect that the court assesses differently than both parties do. (3) The court is to draw the parties’ attention to its concerns regarding any items it is to take into account ex officio. (4) Notice by the court as provided for by this rule is to be given at the earliest possible time, and a written record is to be prepared. The fact of such notice having been given may be proven only by the content of the files. The content of the files may be challenged exclusively by submitting proof that they have been forged. (5) If it is not possible for a party to immediately make a declaration regarding a notice from the court, then the court is to determine a period, upon the party having filed a corresponding application, within which this party may supplement its declaration in a written pleading.
Section 140 Objections raised against the direction of the course of proceedings, or against
questions Where a person involved in the hearing objects to an order issued by the presiding judge concerning his power to control the subject matter of the litigation, by stating that such order is inadmissible, or where a question asked by the presiding judge or by a member of the court is so objected to as being inadmissible, the court shall decide on such objection.
Section 141 Order that a party appear in person
(1) The court is to direct that both parties appear in person where this is deemed to be mandated in order to clear up the facts and circumstances of the case. If, in light of the great distance a party would have to travel, or for other grave cause, it cannot be reasonably expected of a party to appear in person at the hearing, the court is to refrain from ordering such party to appear in person. (2) Where a party is ordered to appear in person, it is to be summoned ex officio. The summons shall be communicated to the party itself also in those cases in which it has retained an attorney of record; the summons need not be served on the party. (3) Should the party fail to make an appearance at a hearing, a coercive fine may be levied against it corresponding to the fine levied against a witness who fails to appear at the hearing determined for his examination. This shall not apply if the party has sent a
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representative to the hearing who is able to clear up the elements of the case and is authorised to make the declarations mandated, in particular to conclude a settlement. The summons is to set out the consequences that may arise for the party should it fail to appear at the hearing.
Section 142 Order to produce records or documents
(1) The court may direct one of the parties or a third party to produce records or documents, as well as any other material, that are in its possession and to which one of the parties has made reference. The court may set a deadline in this regard and may direct that the material so produced remain with the court registry for a period to be determined by the court. (2) Third parties shall not be under obligation to produce such material unless this can be reasonably expected of them, or to the extent they are entitled to refuse to testify pursuant to sections 383 to 385. Sections 386 to 390 shall apply mutatis mutandis. (3) The court may direct that records or documents prepared in a foreign language be translated by a translator who has been authorised or publicly appointed by the authorities of a Land, under the stipulations of Land law, for the preparation of translations of the nature required, or who is deemed to have equivalent qualifications. The translation shall be deemed to be true and complete where this is confirmed by the translator. The confirmation is to be set out on the translation, as are the place and date of the translation and the translator’s authorisation/appointment/equivalency, and the translated document is to be signed by the translator. It is admissible to prove that the translation is incorrect or incomplete. The order provided for in the first sentence hereof may not be issued to the third party.
Section 143 Order to transmit files
The court may direct the parties to the dispute to produce the files in their possession to the extent they consist of documents concerning the hearing on the matter and the decision by the court.
Section 144 Visual evidence taken on site; experts
(1) The court may direct that visual evidence is to be taken on site, and may also direct that experts are to prepare a report. For this purpose, it may direct that a party to the proceedings or a third party produce an object in its possession, and may set a corresponding deadline therefor. The court may also direct that a party is to tolerate a measure taken under the first sentence hereof, unless this measure concerns a residence. (2) Third parties are not under obligation to so produce objects or to tolerate a measure unless this can be reasonably expected of them, or to the extent they are entitled to refuse to testify pursuant to sections 383 to 385. Sections 386 to 390 shall apply mutatis mutandis. (3) The proceedings shall be governed by the rules applying to visual evidence taken on site as ordered upon corresponding application having been made, or by those applying to the preparation of reports by experts as ordered by the court upon corresponding application having been made.
Section 145 Separation of proceedings
(1) The court may direct that several claims brought in one complaint be heard in separate proceedings, if this is justified by factual reasons. The decision shall be issued by a court order and shall cite the reasons on which it is based. (2) The same shall apply if the defendant has brought countercharges and the counterclaim has no legal ties to the claim being enforced by the complaint.
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(3) Where the defendant is raising a counterclaim for set-off that has no legal ties to the claim being enforced by the action, the court may direct that the complaint and the set-off be heard separately; the stipulations of section 302 are to be applied.
Section 146 Limitation to individual means of challenge or defence
Insofar as several independent means of challenge or defence refer to one and the same claim (causes of action, defence pleas, counterpleas, etc.), the court may direct that the hearing be limited initially to addressing one or several of the said means of challenge or defence.
Section 147 Consolidation of proceedings
Wherever the claims forming the subject matter of several proceedings pending with a court, whether involving the same or different parties, have legal ties amongst each other, or wherever they could have been asserted in one single complaint, the court may direct that such proceedings be consolidated in order to be heard and decided on at the same time.
Section 148 Suspension if a decision in another matter is anticipated
Where the decision on a legal dispute depends either wholly or in part on the question of whether a legal relationship does or does not exist, and this relationship forms the subject matter of another legal dispute that is pending, or that is to be determined by an administrative agency, the court may direct that the hearing be suspended until the other legal dispute has been dealt with and terminated, or until the administrative agency has issued its decision.
Section 149 Suspension in the event a criminal offence is suspected
(1) If the suspicion arises in the course of a legal dispute that a criminal offence has been committed, the investigation of which will influence the court’s decision, the court may direct that the hearing be suspended until the criminal proceedings have been dealt with and terminated. (2) Upon corresponding application being made by a party, the court is to continue the hearing if a year has lapsed since the proceedings were suspended. This shall not apply if important reasons indicate that the suspension should be upheld.
Section 150 Repeal of the separation, consolidation, or suspension of proceedings
The court may repeal the orders it has delivered regarding the separation, consolidation, or suspension of proceedings. Section 149 (2) shall remain unaffected hereby.
Section 151 (repealed)
Section 152 Suspension in the event of a petition for annulment of a marriage
Where the decision on a legal dispute depends on whether or not a marriage can be annulled, and where such annulment has been petitioned, the court is to suspend the proceedings upon corresponding application having been made. Where the annulment proceedings have been dealt with and terminated, the suspended proceedings shall be resumed.
Section 153 Suspension in the event of an action challenging paternity having been brought
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Where the decision on a legal dispute depends on whether or not a man whose paternity has been contested by a challenging action is the father of a child, the stipulations of section 152 shall apply mutatis mutandis.
Section 154 Suspension in the event of action having been brought in a matrimonial matter, or in
a matter of parental responsibility for children (1) If, in the course of a legal dispute, the issue is raised of whether or not a marriage or a civil union exists between the parties, and if the decision on the legal dispute depends on the decision handed down on that matter, the court is to suspend the proceedings, upon corresponding application having been made, until the dispute as to the existence or non- existence of the marriage or civil union has been dealt with and terminated in the corresponding action for acknowledgment. (2) This rule shall apply mutatis mutandis if, in the course of a legal dispute, the issue is raised of whether or not a parent-child relationship exists between the parties, or whether or not one party is entitled to exercise parental responsibility for the other, and if the decision on the legal dispute depends on the decision handed down on these matters.
Section 155 Repeal of the suspension in the event of delays
In the situations set out in sections 152 and 153, the court may repeal, upon corresponding application being made, the order by which the proceedings were suspended if the pursuit of the legal dispute giving rise to the suspension is delayed.
Section 156 Resumption of the hearing
(1) The court may direct a hearing that had been closed to be resumed. (2) In particular, the court is to order such resumption where:
1. The court has determined a procedural irregularity that is relevant to its decision and liable to objections being filed (section 295), specifically a violation of the obligation to give notice to the parties and to clear up the circumstances of the matter (section 139), or a violation of the right to be given an effective and fair legal hearing;
2. Facts serving as grounds for the resumption of the proceedings are retroactively submitted and demonstrated to the court in a satisfactory way (sections 579 and 580); or
3. A judge has left the court in the period lapsing between the closure of the hearing for oral argument and the closure of the deliberations and coordination (sections 192 to 197 of the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG)).
Section 157 Delegation of authority for the hearing
In proceedings which the parties to the legal dispute may pursue themselves, the attorney of record acting for a party may delegate his authority to a post-graduate legal trainee (Referendar) who has been assigned to work for him in his preparatory service.
Section 158 Removal from the hearing as the result of a court order issued as part of the court’s
direction of the course of proceedings Where a person involved in the hearing has been removed from the location at which the hearing is held in order to maintain order in the court, this person may be proceeded against, upon a corresponding petition being filed, in the same manner as if he had voluntarily left the hearing.
Section 159 Recording the hearing
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(1) A record is to be prepared of the hearing and of all evidence taken. A records clerk of the court registry may be involved in order to keep the record if this is required due to the expected scope of the record, in light of the particular complexity of the matter, or for any other grave cause. (2) Subsection (1) shall apply mutatis mutandis to hearings taking place outside of the session of the court before judges of a local court (Amtsgericht, AG) or before judges correspondingly delegated or requested. Records of conciliation hearings or of further attempts made at resolving the dispute before a conciliation judge (Güterichter) pursuant to section 278 (5) will be prepared solely based on a petition of the parties in congruent declarations.
Section 160 Content of the hearing record
(1) The record of the hearing shall set out:
1. The place and date of the hearing;
2. The names of the judges, of the records clerk of the court registry, and of any interpreter who may have been involved;
3. The designation of the legal dispute;
4. The names of the parties appearing, of third parties intervening in support of a party to the dispute, of representatives, attorneys-in-fact, advisers, witnesses and experts, and, in the case provided for by section 128a, the place at which they are attending the hearing;
5. The information that the hearing was held in open court or in camera. (2) The record is to set out the essential course of the hearing and actions taken therein. (3) The record of the hearing is to set out:
1. Any acknowledgments, abandonments of claims, and settlements;
2. The petitions;
3. Any admission and declaration as to a petition for the examination of a party, as well as any other declarations the determination of which is required;
4. The testimony by witnesses, experts and parties examined; in the event of a repeated examination, the testimony need be included in the record of the hearing only insofar as it deviates from the testimony previously given;
5. The results of taking visual evidence on site;
6. The decisions (judgments, orders, and rulings) of the court;
7. The pronouncement of the decisions;
8. The withdrawal of legal action or of appellate remedies;
9. The waiver of appellate remedies;
10. The results of a conciliation hearing. (4) The parties involved may apply to have specific actions and events, or statements, included in the record of the hearing. The court may refrain from so including them if the determination of the actions and events or of the statements is not relevant. Such order shall not be contestable and is to be included in the record of the hearing.
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(5) Inclusion into the record of the hearing shall be equivalent to inclusion in a writing that is attached to the record of the hearing as an appendix, and that is designated as such in the record.
Section 160a Preparing a preliminary record of the hearing
(1) The content of the record of the hearing may be noted in a usual form of shorthand, by using comprehensible abbreviations, or by recording oral statements on a sound or data carrier. (2) In such event, the record of the hearing is to be prepared without undue delay following the session of the court. To the extent that determinations pursuant to section 160 (3) numbers 4 and 5 have been recorded on a preliminary basis using a sound recorder, this is all that needs to be noted in the record of the hearing. The record of the hearing is to be amended by these determinations should a party petition that this be done prior to the proceedings having been concluded as res judicata, or where the court of appeal requires such amendment to be made. If determinations pursuant to section 160 (3) number 4 have been directly included in the record, and if, concurrently, the essential result of the testimony given has been noted on a preliminary basis, it may only be demanded that the record of the hearing be amended by the essential result obtained by the testimony. (3) The preliminary notes are to be included in the court records of the dispute or, should they not be suited for this purpose, they are to be stored in the court registry together with the court records of the dispute. Recordings made on sound or data carriers may be deleted:
1. To the extent the record of the hearing has been created following the session of the court or is amended by the determinations noted on a preliminary basis, provided that the parties to the dispute have not lodged any objections within one (1) month of the copy having been communicated to them;
2. Following the conclusion of the proceedings by a final and binding judgment. Insofar as the court has available a central data storage facility, the preliminary notes may be stored in such central data storage facility instead of being stored as set out in the first sentence hereof. (4) It is possible to create a final record by recording it on data carriers in the form provided for by section 130b.
Section 161 Dispensable determinations
(1) Determinations pursuant to section 160 (3) number 4 and 5 need not be included in the record of the hearing:
1. Where the court hearing the case performs the examination or takes visual evidence on site, and where the final judgment is not subject to appeal or to an appeal on points of law;
2. To the extent the complaint is retracted, the claim being enforced is acknowledged or waived, and appellate remedies are waived or the legal dispute is terminated by settlement.
(2) The record of the hearing is to note that the examination was performed or that visual evidence was taken on site. Section 160a (3) shall apply mutatis mutandis.
Section 162 Approval of the record of the hearing
(1) Insofar as the record of the hearing sets out determinations pursuant to section 160 (3) numbers 1, 3, 4, 5, 8, 9, or petitions recorded with the registry for the files of the court, it is to be read out loud to the parties involved or is to be submitted to them for their review. Should the content of the record have been noted only on a preliminary basis, reading the notes or
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replaying the sound recording shall be deemed compliant with the present rule. The record of the hearing is to note that this has been done and that the record has been approved, or it shall note the objections that have been raised. (2) Determinations made pursuant to section 160 (3) number 4 need not be replayed if they were recorded directly in the presence of the parties involved; the party involved whose testimony was recorded may demand that it be replayed. To the extent any determinations pursuant to section 160 (3) numbers 4 and 5 were dictated in the presence of the parties involved, the court may forgo replaying the recording, reading the record out loud, or submitting it for the parties to review if the parties involved waive having this done following the recording; the record of the hearing is to set out this waiver.
Section 163 Signature of the record of the hearing
(1) The record of the hearing is to be signed by the presiding judge and by the records clerk of the court registry. Should the content of the record of the hearing, as a whole or in part, have been recorded on a preliminary basis using a sound recorder, the records clerk of the court registry is to check that the content has been correctly word-processed and is to confirm that this has been done; this shall also apply if the records clerk of the court registry was not present at the session of the court. (2) Where the presiding judge is prevented from signing the record, the most senior among the associated judges shall sign on his behalf; where only one judge was involved and he is prevented from signing the record, the signature of the records clerk of the court registry who was involved in the proceedings in order to keep the record shall be compliant with the present rule. The reasons preventing a judge from signing the record shall be noted in the record of the hearing.
Section 164 Corrections of the hearing record
(1) Inaccuracies of the hearing record may be corrected at any time. (2) Prior to the correction, the parties to the dispute are to be heard and, to the extent the correction concerns the determinations set out hereinabove in section 160 (3) number 4, the other parties involved are likewise to be heard. (3) The correction is to be noted on the record of the hearing; in this context, reference may be made to an annex to be attached to the record of the hearing. The note is to be signed by the judge signing the record of the hearing, or by the judge sitting alone, even if he was prevented from signing the record, and by the records clerk of the court registry to the extent he was involved in the proceedings as the keeper of the record. (4) In cases in which the correction is noted in the form as provided for by section 130b, it is to be recorded in a separate electronic document. The document is to be joined to the record of the hearing such that it cannot be separated.
Section 165 Evidentiary value of the hearing record
Compliance with the formal requirements stipulated for the hearing can be proven only by the record of the hearing. The exclusive means of admissibly challenging the content of the record concerning these formal requirements is the submission of proof that it has been forged.
Title 2 Procedure for the Service of Records or Documents
Subtitle 1 Service ex officio
Section 166 Service
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(1) The term “service” designates the issuance of a document to a person in the form stipulated in the present Title. (2) Documents, service of which is required by rules or has been ordered by the court, are to be served ex officio unless otherwise provided for.
Section 167 Retroactive effect of the service
If service is made in order to comply with a deadline, or to have the period of limitations begin anew, or to have it extended pursuant to section 204 of the Civil Code (Bürgerliches Gesetzbuch, BGB), the receipt of the corresponding application or declaration by the court shall already have this effect provided service is made in the near future.
Section 168 Responsibilities of the court registry
(1) The court registry shall perform service of documents pursuant to sections 173 to 175. It may contract a private enterprise charged with the performance of state duties pursuant to section 33 (1) of the Postal Law (Postgesetz) (this being the postal service), or it may charge an employee of the judiciary with performing service. The court registry shall award the contract to the postal service on the form intended for this purpose. (2) The presiding judge of the court hearing the case, or a member of the court accordingly delegated by the presiding judge, may charge a court-appointed enforcement officer or another authority with service of the documents, should service in accordance with subsection (1) not hold out any prospect of success.
Section 169 Confirmation of the time of service; certification
(1) Upon corresponding application being made, the court registry shall confirm the time of service. (2) The court registry shall certify the documents to be served. This shall also apply unless an attorney has already certified the documents submitted to the court. (3) A copy to be served in paper format may also be certified by machine processing. Instead of being signed by hand, the copy is to be furnished with the court seal. The same shall apply if a copy is served by telefax. (4) A document may be served as a certified electronic copy. The copy is to be furnished with the qualified digital signature of the records clerk of the court registry. (5) A judicial electronic document executed in accordance with section 130b may be served as an original; it need not be certified.
Section 170 Service on representatives
(1) In the event a person does not have the capacity to conduct proceedings, service is to be made on his legal representative. Any service made on the person incapable of conducting proceedings shall not be valid. (2) Should the party on whom documents are to be served not be an individual, service on the entity’s head shall suffice. (3) In the event of an entity having more than one legal representative or head, it shall suffice to serve the documents on one of them.
Section 171 Service on authorised recipients
Service on the representative appointed by legal transaction shall have the same effect as service on the party so represented. The representative is to produce a written power of attorney.
Section 172 Service on attorneys of record
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(1) Wherever proceedings are pending, service is to be made on the attorney of record appointed for the respective level of jurisdiction. This shall apply also to procedural actions affecting the proceedings before the court of that level of jurisdiction as a result of: protest having been entered, the judgment handed down by that court having been reversed, the proceedings having been reopened, an objection having been filed pursuant to section 321a, or new statements having been submitted to the court in compulsory enforcement proceedings. Proceedings before the court responsible for enforcement are proceedings at the first level of jurisdiction. (2) A written pleading by which an appeal is filed is to be served on the attorney of record admitted to that level of jurisdiction the decision of which is being contested. If an attorney of record has already been appointed for the higher level of jurisdiction, the written pleading is to be served on that attorney. Service shall be made on the party itself if the party has not appointed an attorney of record.
Section 173 Service by physical delivery at the sub-office
A document may be served on its addressee, or the representative appointed by legal transaction, by physically delivering it to the sub-office. By way of proving such service, it is to be noted on the document and in the files that the document was physically delivered for the purpose of serving it on the addressee, while also adding the date of such service; in the event of the document having been physically delivered to the representative, this is to be noted together with the name of the person to whom physical delivery was made; moreover, the note is to confirm that the power of attorney was produced pursuant to section 171, second sentence. The note is to be signed by the employee physically delivering the documents.
Section 174 Service against return confirmation of receipt
(1) A document may be served, against return confirmation of receipt, on an attorney, a notary, a court-appointed enforcement officer, a tax consultant or any other person of whom it can be assumed, based on that person’s profession, that he is highly reliable, a public authority, a corporation, or a corporation under public law. (2) The document may also be served by telefax on the parties set out in subsection (1). In its heading, the transmission is to bear the note, “Service against return confirmation of receipt” and is to set out the sender, the name and address of the party on whom documents are to be served, as well as the name of the employee of the judiciary effecting the transmission of the document. (3) A document may also be served on the parties set out in subsection (1) as an electronic document. The same shall apply to other parties involved in the proceedings, provided they have expressly consented to the documents being transmitted as electronic documents. The document is to be signed digitally for the transmission and is to be protected against its becoming known to unauthorised third parties. Such transmission may also be effected using De-Mail services in the sense as defined by section 1 of the Law on De-Mail Services in Electronic Communications (Gesetz zur Regelung von De-Mail-Diensten, De-Mail-G). (4) Service shall be deemed sufficiently proven by the return confirmation of receipt being returned to the court, such confirmation setting out the date and signature of the addressee. The return confirmation of receipt may be returned by letter, by telefax, or as an electronic document (section 130a). Should it be sent as an electronic document, it is to be signed by a qualified digital signature pursuant to the Electronic Signature Act (Signaturgesetz).
Section 175 Service by registered mail, return receipt requested
A document may be served by registered mail, return receipt requested. Service shall be deemed sufficiently proven by the return receipt.
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Section 176 Instructions to serve records or documents
(1) Should the postal service, an employee of the judiciary or a court-appointed enforcement officer be charged with serving documents, or should another authority be requested to so perform service, the court registry shall physically submit the document to be so served in a closed envelope along with a record of service that has already been completed for the service. (2) Service shall be made in accordance with the provisions of sections 177 through 181.
Section 177 Place of service
The document may be physically submitted to the person on whom it is to be served at any location at which the person is found.
Section 178 Substituted service at the residence, at business premises, and at institutions
(1) Should the person on whom documents are to be served not be located at his residence, business premises, or in an institution in which he is a resident, the document may be served:
1. At the residence: on an adult family member, a person employed by the family or an adult resident permanently sharing the accommodations,
2. At business premises: on a person employed there,
3. In institutions: on the head of the institution or a correspondingly authorised attorney-in-fact.
(2) Service on one of the persons designated in subsection (1) shall be invalid wherever this person is involved in the legal dispute as an opponent of the person on whom documents are to be served.
Section 179 Service in the event acceptance is refused
Should acceptance of the document to be served be refused without justification, the document is to be left at the residence or at the business premises. Should the party on whom documents are to be served not have a residence, or should no business premises exist, the document to be served is to be returned. Upon such refusal of acceptance, the document shall be deemed served.
Section 180 Substituted service by placement in the letterbox
Should it not be possible to serve the document pursuant to section 178 (1) number 1 or 2, the document may be placed in a letterbox appurtenant to the residence or the business premises, or into a similar receptacle that the addressee has put up for the purpose of receiving mail, and which according to general practice is suited to securely store mail. By this placement, the document shall be deemed served. The person so serving it shall note the date of service on the envelope of the document to be served.
Section 181 Substituted service by deposit of the records or documents
(1) Should it not be possible to serve the document pursuant to section 178 (1) number 3 or section 180, the document to be served may be deposited with the court registry of the local court (Amtsgericht) having jurisdiction for the place of service. Should the postal service have been contracted with serving the documents, the document to be served is to be deposited at the place of service or at the location of the local court at a point designated for this purpose by the postal service. A written notice of such deposit is to be submitted at the address of the person on whom documents are to be served, using the corresponding form
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in the manner usual for the delivery of regular letters, or, should this not be possible, the written notice is to be affixed to the door of the residence, the business premises, or the institution. Upon such written notification having been submitted, the document shall be deemed served. The person so serving it shall note the date of service on the envelope of the document to be served. (2) The deposited document is to be kept available for collection for three (3) months. Following the expiry of this period, documents that have not been collected are to be returned to the sender.
Section 182 Record of service
(1) By way of providing proof of service pursuant to section 171 and sections 177 to 181, a record is to be prepared using the corresponding form. Section 418 shall apply to this record of service. (2) The record of service must include:
1. The designation of the person on whom service is to be made,
2. The designation of the person to whom the letter or the document was physically submitted,
3. In the case provided for by section 171, the statement that the power of attorney was produced,
4. In the case provided for by section 178 and section 180, the reason justifying this form of service and, if the procedure set out in section 181 was followed, the note on how the written notification was submitted,
5. In the case provided for by section 179, a note as to who refused acceptance and that the letter was left at the place of service or was returned to the sender,
6. The note that the day of service was noted on the envelope containing the document to be served,
7. The place, the date and, should the court registry so have instructed, also the time of service,
8. The surname, given name, and signature of the person serving the documents as well as the name of the enterprise contracted for service, or the public authority charged with this task.
(3) The record of service is to be returned to the court registry, without undue delay, as an original or as an electronic document.
Section 183 Service abroad
(1) Documents are to be served abroad in accordance with the agreements made in international instruments. Wherever documents may be sent directly by the postal service based on such agreements in international instruments, they shall be served by registered mail, return receipt requested; in all other cases, service shall be made, at the request of the presiding judge of the court hearing the case, directly by the public authorities of the other state. (2) Should it not be possible to serve the documents in accordance with subsection (1), the responsible diplomatic or consular mission of the Federal Republic or any other public authority responsible shall serve the documents. The procedure set out in the first sentence hereof is to be followed in particular if no agreements have been made in international instruments, if the competent bodies of the state concerned are not willing to provide legal assistance, or if special grounds justify such form of service.
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(3) Documents to be served on Germans enjoying immunity as a member of a consular or diplomatic mission of the Federal Republic of Germany abroad shall be served, on the request of the presiding judge of the court hearing the case, by the consular or diplomatic mission responsible. (4) The return receipt shall suffice as proof of service having been effected pursuant to subsection (1), second sentence, first clause of the sentence. Proof of service pursuant to subsection (1), second sentence, second clause of the sentence, and subsections (2) and (3) is provided by the documentary evidence submitted by the public authority correspondingly charged with the service of documents. (5) The stipulations of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and on the repeal of Council Regulation (EC) No 1348/2000 (Official Journal L 324 page 79) shall remain unaffected hereby. Section 1068 (1) and section 1069 (1) shall apply to the implementation.
Section 184 Authorised recipients; service by mailing the records or documents
(1) For service pursuant to section 183, the court may order the party to name, within a reasonable period of time, an authorised recipient who is a resident of Germany or who has business premises in Germany, unless the party has appointed an attorney of record. Should no authorised recipient be named and until such recipient is named retroactively, documents may be served subsequently by being mailed to the address of the party. (2) Two (2) weeks after it has been mailed, the document shall be deemed served. The court may set a longer period. In the order issued pursuant to subsection (1), attention is to be drawn to these legal consequences. By way of recording proof of the documents having been served, it is to be noted in the files at which time and to which address the document was mailed.
Section 185 Service by publication
The documents may be served by publishing a notice (service by publication) wherever:
1. The abode of a person is unknown and it is not possible to serve the documents upon a representative or authorised recipient,
2. It is not possible to serve documents upon legal persons obligated to register a domestic business address with the Commercial Register, neither at the address entered therein nor at the address entered in the Commercial Register of a person authorised to receive service of documents, or at any other domestic address obtained without any investigations,
3. It is not possible to serve documents abroad, or if such services does not hold out any prospect of success, or
4. The documents cannot be served because the place of service is the residence of a person who, pursuant to sections 18 to 20 of the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG), is not subject to jurisdiction.
Section 186 Approval of and implementation of service by publication
(1) The court hearing the case shall decide on whether or not to approve service by publication. The decision may be given without a hearing being held. (2) Service by publication shall be implemented by hanging a notification on the court’s bulletin board or by publishing the notification in an electronic information system that is publicly accessible in the court. Additionally, the notification may be published in an electronic information and communications system established by the court for such notifications. The notification must set out:
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1. The person on whose behalf the documents are to be served,
2. The name of the party to whom documents are to be served and the address last known,
3. The date, the reference number of the document, and the designation of the subject matter of the proceedings, as well as
4. The office at which the document may be inspected. The notification must include the note that a document is being served by publication, that this service may trigger periods, and that once they have lapsed, the party to whom the documents are being served in this way may have forfeited rights. In serving summonses in this way, the notification must indicate that the document sets out a summons to a hearing and that should the party fail to comply with it, such failure may act to the party’s detriment in legal terms. (3) It is to be recorded in the files when the notification was displayed on the bulletin board and when it was removed.
Section 187 Publication of the notification
The court hearing the case additionally may order the notification to be published once, or several times, in the Official Gazette (Bundesanzeiger) or in other publications.
Section 188 Time at which service by publication has been effected
The document shall be deemed served should one (1) month have lapsed since the notification has been displayed on the bulletin board. The court hearing the case may set a longer period.
Section 189 Remediation of defects in the service of records or documents
Should it not be possible to prove that a document has been served in due form, or should the document have been received in violation of mandatory regulations governing service of documents, it shall be deemed served at that point in time at which the document was factually received by the person to whom service of the document was addressed, or could be addressed.
Section 190 Standard forms for the service of records or documents
The Federal Ministry of Justice hereby is authorised to introduce forms serving the simplification and streamlining of the service of documents, such forms being subject to approval by the Bundesrat and being made by statutory instrument.
Subtitle 2 Service of records or documents at the instigation of the parties
Section 191 Service of records or documents
Insofar as it is admissible or required to serve documents at the instigation of the parties, the rules regarding ex officio service shall be applied mutatis mutandis unless otherwise provided for by the rules set out hereinbelow.
Section 192 Service of records or documents by a court-appointed enforcement officer
(1) The service of documents to be performed at the instigation of the parties shall be performed by the court-appointed enforcement officer subject to the stipulations set out in sections 193 and 194.
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(2) The party shall physically submit to the court-appointed enforcement officer the document to be served, along with the required copies. The court-appointed enforcement officer shall certify the copies; he may prepare any lacking copies himself. (3) In proceedings before the local court (Amtsgericht, AG), the party may charge, with the assistance of the registry of the court hearing the case, the court-appointed enforcement officer with serving the documents. In this context, the court registry is to charge the court- appointed enforcement officer with the service.
Section 193 Implementation of service
(1) On the original copy of the document to be served, or on the form provided for this purpose that is to be attached to the original copy of the document, the court-appointed enforcement officer shall attest that the document has been served pursuant to section 182 (2), and he shall note in said attestation the name of the person on behalf of whom he has performed such service. Where service is effected by mailing the document, the date and the address at which the document was mailed are to be noted. (2) The court-appointed enforcement officer shall note, on the document to be physically submitted, the date on which it was served, unless he physically submits a certified copy of the record of service. (3) The record of service is to be transmitted to the party on behalf of whom the documents were served.
Section 194 Instructions to serve records or documents
(1) If the court-appointed enforcement officer charges the postal service with serving the documents, he shall note on the document to be served the person or entity on whose behalf he is submitting said documents to the postal service. He shall attest on the original of the document to be served, or on a handover form to be attached to the original document, that the postal item has been submitted to the postal service, and that it bears: the address of the party to whom the document is to be served, the designation of the court-appointed enforcement officer so serving it, and a reference number. (2) The postal service shall return the record of service to the court-appointed enforcement officer without undue delay.
Section 195 Service of records or documents from one attorney on another attorney
(1) If the parties to a dispute are represented by counsel, a document may also be served such that the attorney serving a document transmits it to the other attorney (service of documents from one attorney on another attorney). This also applies to written pleadings that, pursuant to the stipulations of the present Code, are to be served ex officio: they may instead be served from one attorney on the other, unless a court order is to be communicated concurrently to the opponent. The written pleading is to set out the declaration that service on the other attorney will be effected by the attorney. To the extent required for the decision to be taken, supporting documentary proof is to be provided to the court that the documents have so been served. Section 174 (2), first sentence, and subsection (3) first and third sentences shall apply mutatis mutandis to the service of documents on an attorney. (2) Service shall be deemed sufficiently proven by the return confirmation of receipt bearing the date and the signature of the attorney on whom the documents were served. Section 174 (2) second and third sentences shall apply mutatis mutandis. The attorney effecting service of documents is to provide to the other attorney, at the latter’s request, confirmation of service having been effected.
Sections 195a to 213a (repealed)
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Title 3 Summonses, hearings, and periods
Section 214 Summons to a hearing
The summons to a hearing is initiated ex officio.
Section 215 Required content of a summons to a hearing for oral argument
(1) The summons to a hearing for oral argument is to instruct the recipient as to the consequences of his failure to make an appearance at the hearing (sections 330 to 331a). The instruction is to include the legal consequences set out in section 91 and section 708 number 2. (2) In proceedings in which the parties must be represented by counsel, the summons to a hearing for oral argument must call upon the party to appoint an attorney, unless such summons has been served on the party’s counsel.
Section 216 Hearing dates determined by the court
(1) The dates of hearings are determined ex officio wherever petitions or declarations are submitted to the court that can be ruled on only after having heard oral argument, or regarding which the court has instructed that oral argument be heard. (2) The presiding judge is to determine the hearings without undue delay. (3) Hearings shall be arranged for Sundays, general holidays, or Saturdays only in emergencies.
Section 217 Summons period
The period that is to lapse, in a matter that is pending, between the date on which the summons was served and the date of the hearing (summons period) shall amount to at least one (1) week in proceedings in which the parties must be represented by counsel, and at least three (3) days in other proceedings.
Section 218 Cases in which a summons may be dispensed with
Notwithstanding the stipulations of section 141 (2), it shall not be required to summon the parties to hearings determined in decisions pronounced by the court.
Section 219 Venue of the hearing
(1) The hearings shall be held at the location of the court unless it is necessary to take visual evidence on site, to hear a person who is prevented from appearing before the court, or to take any other action that cannot be taken at the court’s location. (2) The President of the Federal Republic of Germany is not under obligation to appear at the location of the court in person.
Section 220 Case called up; failure of a party to make an appearance at the hearing
(1) The hearing shall begin with the case being called up. (2) A party shall be deemed to have failed to appear at the hearing if it fails to enter a pleading prior to that hearing being closed.
Section 221 Commencement of periods
(1) Unless otherwise arranged when periods are determined, any periods determined by a judge shall commence upon service of the documents in which said period is determined;
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where no such service is required, the period shall commence upon being pronounced by the court.
Section 222 Calculation of the period
(1) The provisions made by the Civil Code (Bürgerliches Gesetzbuch, BGB) shall apply to the calculation of the period. (2) If the end of a period falls on a Sunday, a general holiday, or a Saturday, the period shall end at midnight of the subsequent business day. (3) In calculating a period determined by hours, any Sundays, general holidays, and Saturdays shall not be included in the calculation.
Section 223 (repealed)
Section 224 Reduction of a period; extension of a period
(1) The parties may agree to shorten periods; this shall not include statutory periods. Statutory periods shall be only those periods that have been designated as such in the present Code. (2) Upon corresponding application being made, periods set by judges as well as periods prescribed by law may be shortened or extended if substantial grounds for doing so have been demonstrated to the court in a satisfactory way; however, periods prescribed by law may be so shortened or extended only in the cases specifically determined. (3) Unless otherwise determined in the individual case, the new period determined in extending a period shall be calculated from the date on which the previous period has expired.
Section 225 Procedure for modifying a period
(1) The court may decide on a request for the reduction or extension of a period without arranging a hearing for oral argument. (2) The court is to approve any reduction or repeated extension only after having heard the opponent. (3) The court order dismissing the request for extension of a period is incontestable.
Section 226 Reduction of interim periods
(1) Times determined for entering an appearance, periods indicated in the summons as the period lapsing between service of same and the date of the hearing (summons periods), as well as those periods that are determined for service of preparatory written pleadings may be shortened upon corresponding application being made. (2) A reduction of the times for entering an appearance and of periods indicated in the summons as periods lapsing between service of same and the date of the hearing (summons periods) will not be ruled out by the fact that, as a result of such times or periods being shortened, the hearing cannot be prepared by written pleadings. (3) In determining the hearing, the presiding judge may order the reduction of the period without hearing the opponent or the party involved otherwise in the proceedings; a copy of the corresponding order shall be communicated to the party involved in the proceedings.
Section 227 Changes of date for scheduled hearings
(1) Should substantial grounds so require, a hearing may be cancelled or deferred, or a hearing for oral argument may be postponed. The following are not substantial grounds:
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1. The failure of a party to appear, or its announcement that it will not appear, unless the court is of the opinion that the party was prevented from appearing through no fault of its own;
2. A party’s insufficient preparation, unless the party provides sufficient excuse therefor;
3. An agreement reached by the parties alone. (2) Substantial grounds are to be demonstrated to the satisfaction of the presiding judge should he so demand, while substantial grounds for postponing a hearing are to be demonstrated to the satisfaction of the court should it so demand. (3) Any hearing determined for the period from 1 July until 31 August, to the exception of a hearing set for the pronouncement of a decision, is to be postponed, upon corresponding application being made, within one (1) week following receipt of the summons or following the date on which the hearing is determined by the court. This shall not apply to:
1. Matters involving the seizure of assets, or matters concerning an injunction or interim order,
2. Disputes concerning the permission to use spaces, the use or surrender of such spaces, or the eviction from same, or disputes regarding the continuation of lease relationships for residential spaces based on sections 574 to 574b of the Civil Code (Bürgerliches Gesetzbuch, BGB),
3. (repealed)
4. Proceedings on claims arising from a bill of exchange or on claims asserted concerning the payment of a cheque,
5. Matters of construction law where the dispute concerns the continuation of a construction project that has been commenced,
6. Disputes concerning the permission to use an object, or the surrender of such object, to a person with whom the object is not subject to attachment by the court authorities,
7. Compulsory enforcement proceedings, or
8. Proceedings for issuing a declaration of enforceability or for the judges to take action in arbitration proceedings;
in this context, it shall suffice if only one of several claims meets the prerequisites. Wherever the proceedings require special acceleration, the court shall not comply with an application for deferral. (4) The presiding judge shall decide on the cancellation or deferral of a hearing without oral argument being heard; the court shall rule on the postponement of a hearing. The reasons for the decision are to be summarised in brief. It is incontestable.
Section 228 (repealed)
Section 229 Judge correspondingly delegated or requested
The authorities allocated to the court and the presiding judge in the present Title are likewise granted to the judge correspondingly delegated or requested as regards the hearings and periods that such judge is to determine.
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Title 4 Consequences of failure to take action; instruction on available legal remedies;
restoration of the status quo ante
Section 230 General consequence of failing to take action
The failure to take action in the proceedings will lead to the general consequence that the party will be disqualified from taking such action in the proceedings.
Section 231 No warning; procedural actions taken retroactively
(1) No warning need be issued regarding the consequences under law of failing to take action; these consequences shall ensue automatically unless the present Code requires a petition to be filed in order for the legal detriment to take effect. (2) In the latter case, the action that was not taken in the proceedings may be arranged retroactively as long as the petition has not been filed and as long as the oral argument on such petition has not been closed.
Section 232 Instruction on available legal remedies
Any court decision that may be contested is to provide an instruction on the remedy available, the protest, the contradiction, or the reminder, as well as on the court with which the remedy is to be lodged, the seat of said court, and the requirements as to form and deadlines. This does not apply in proceedings in which the parties must be represented by an attorney, unless the instructions are to be given regarding a protest or contradiction, or the instruction is to be addressed to a witness or to an expert. No instruction need be given regarding the option to file an immediate appeal on law in lieu of an appeal on facts and law (leap-frog appeal).
Section 233 Restoration of the status quo ante
Where a party was prevented, through no fault of its own, from complying with a statutory period or the deadline set for submitting the particulars of its appeal, the grounds for filing the appeal on points of law, the complaint against denial of leave to appeal, or the complaint on points of law, or where a party was prevented from adhering to the period stipulated in section 234 (1), that party is to be granted the restoration of the status quo ante upon a corresponding petition being filed. It will be presumed that the party was not at fault if no instruction on available legal remedies was provided, or if it was deficient.
Section 234 Period for the restoration of the status quo ante
(1) The petition for such restoration of the status quo ante must be filed within a two-week period. The period shall amount to one (1) month if the party is prevented from complying with the deadline set for submitting the particulars of its appeal, the grounds for filing the appeal on points of law, the complaint against denial of leave to appeal, or the complaint on points of law. (2) The period shall commence on the date on which the impediment has been removed. (3) Following the expiry of one (1) year, counting from the end of the period that has not been met, filing a petition for the restoration of the status quo ante is no longer an available remedy.
Section 235 (repealed)
Section 236 Petition for restoration of the status quo ante
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(1) The form of the petition for the restoration of the status quo ante shall be governed by the rules pertaining to the action that was not taken in the proceedings. (2) The petition must set out the facts based on which the restoration of the status quo ante is justified; they must be demonstrated to the satisfaction of the court in the course of filing the petition or in the procedure regarding same. The action that was not taken in the proceedings is to be retroactively taken within the period set for the petition; if this has been done, the restoration of the status quo ante may be granted also without a petition having been filed.
Section 237 Responsibility for restoration of the status quo ante
That court shall decide on the petition for restoration of the status quo ante that is to decide on the action to be taken in the proceedings and the retroactive arrangement of same.
Section 238 Procedure in the event of the status quo ante having been restored
(1) The procedure regarding the petition for restoration of the status quo ante is to be tied to the procedure regarding the retroactive arrangement of the action to be taken in the proceedings. However, the court may initially limit the procedure to a hearing for oral argument on the petition and the decision on same. (2) Those rules are to be applied to the decision as to the admissibility of the petition, and to any contestation of the decision, that apply in these relationships to the retroactive arrangement of the action to be taken in the proceedings. However, the party that has filed the petition shall not be entitled to enter a protest. (3) The restoration of the status quo ante is incontestable. (4) The party filing the petition shall be charged with the costs that the restoration of the status quo ante has entailed, unless such costs were engendered by an unfounded objection having been lodged by its opponent.
Title 5 Interruption and suspension of the proceedings
Section 239 Interruption due to the death of a party
(1) In the event of the death of a party, the proceedings shall be interrupted until they are resumed by the party’s successors in title. (2) Where the resumption is delayed, the successor in title is to be summoned, upon a corresponding petition being filed by the opponent, to resume the proceedings and to appear at the hearing in the main action. (3) The summons, together with the written pleading setting out the petition, is to be served on the successors in title themselves. The period lapsing between service of the summons and the date of the hearing (summons periods) is to be determined by the presiding judge. (4) Should the successors in title fail to appear at the hearing, the alleged succession in title is to be assumed, upon a corresponding petition being filed, as having been acknowledged, and oral argument is to be heard on the merits of the case. (5) An heir is not under obligation to continue a legal dispute prior to his having accepted the inheritance.
Section 240 Interruption due to insolvency proceedings
In the event of insolvency proceedings being opened against a party, the proceedings shall be interrupted to the extent they concern the insolvent estate until they can be resumed in accordance with the rules applying to the insolvency proceedings, or until the insolvency proceedings are terminated. The same shall apply if the authority to manage the debtor’s assets and the power to dispose over them devolves upon a preliminary insolvency administrator.
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Section 241 Interruption due to a person coming under legal disability
(1) If a party loses its capacity to sue or be sued, or if the legal representative of a party dies, or if his power of representation ceases without the party having regained its capacity to sue or be sued, the proceedings shall be interrupted until the legal representative or the new legal representative notifies the court of his appointment, or until the opponent has notified the court of his intention to continue the proceedings and the court has served this notification ex officio. (2) The notification of the legal representative is to be served on the opponent of the party he is representing; the notification of the opponent is to be served on the representative. (3) These rules shall apply mutatis mutandis where a court orders the administration of the estate.
Section 242 Interruption due to reversionary succession
Should – in the course of a legal dispute ongoing between a provisional heir and a third party regarding a matter or object that is subject to reversionary succession – the reversionary succession in fact occur, the stipulations of section 239 shall apply mutatis mutandis regarding the interruption and the resumption of the proceedings, provided that the provisional heir was authorised to dispose over the matter or object without the consent of the reversionary heir.
Section 243 Resumption of proceedings in the case of a curator or an executor having been
appointed for an estate If a court has appointed a curator of the estate in cases in which proceedings have been interrupted by the death of a party, or if an executor exists who is entitled to pursue the legal dispute, the stipulations of section 241 are to be applied in resuming the proceedings and, if insolvency proceedings are opened regarding the estate, the stipulations of section 240 are to be applied in so resuming them.
Section 244 Interruption due to the loss of an attorney
(1) If, in proceedings in which the parties must be represented by counsel, the attorney representing a party dies, or becomes unable to continue representing the party, the proceedings shall be interrupted until the attorney newly appointed by the party notifies the court of his having been appointed and the court has served the notification ex officio upon the opponent. (2) Where this notification is delayed, the party is to be summoned in person to the hearing in the main action, upon corresponding application being made by the opponent, or the party is to be instructed to appoint a new attorney within a period to be determined by the presiding judge. Should this instruction not be complied with, the proceedings are to be deemed as having been resumed. Until notice is given retroactively that a new attorney has been appointed, all documents shall be served on the party obligated to file such notification with the court.
Section 245 Interruption due to suspension of the administration of law
Should, as the consequence of war or of any other event, the court cease its activities, the proceedings shall be interrupted for the duration of this situation.
Section 246 Suspension in the event a party is represented by an attorney of record
(1) Where a party was represented by an attorney of record in the event of: the death of a party, the loss of its capacity to sue or be sued, the loss of a legal representative, the issuance of an order as to the administration of an estate, or the occurrence of reversionary
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succession (sections 239, 241, 242), the proceedings shall not be interrupted; however, upon corresponding application being made by the attorney-in-fact, the court hearing the case is to order the suspension of the proceedings, and in the event of death and of reversionary succession, it shall do so also upon corresponding application being made by the opponent. (2) The term of the suspension and the resumption of the proceedings shall be governed by the stipulations of section 239 and sections 241 to 243; in the event of death and of reversionary succession, the summons is to be served, together with the written pleading in which the suspension is petitioned, also on the attorney-in-fact.
Section 247 Suspension in the event of interrupted communications
Where a party is staying at a location that is cut off from communications with the court hearing the case and this is due to the established authorities having issued a corresponding order, to war or to other coincidences, the court may also direct, ex officio, that the proceedings be suspended until such impediment has been removed.
Section 248 Procedure in the event of suspension
(1) The request for suspension of the proceedings is to be filed with the court hearing the case; it may be recorded with the registry for the files of the court. (2) The decision may be given without a hearing being held.
Section 249 Effects of interruption and suspension
(1) The interruption and suspension of the proceedings will have the effect of stopping any period that may be running, which will recommence in full after the interruption or suspension of the proceedings has ended. (2) Any procedural actions taken by a party with a view to the main action while the proceedings are interrupted or suspended will have no legal effect vis-à-vis the other party. (3) Any interruption occurring after a hearing has ended will not impede the pronouncement of the decision to be delivered on the basis of this hearing.
Section 250 Form of resuming proceedings and notification
Any proceedings interrupted or suspended shall be resumed, and any notifications mentioned under this Title shall be made by serving a written pleading to be submitted to the court.
Section 251 Stay of proceedings
The court is to order that proceedings be stayed if both parties have petitioned that this be done, and if it is to be assumed that such order is suitable for the purpose intended in light of the pendency of settlement negotiations or of other sound reasons. Such order will not have any influence on the running of the periods designated in section 233.
Section 251a Failure of both parties to comply with procedural rules; decision on the basis of the
record as it stands (1) Should neither party appear at a hearing, or should both parties fail to submit oral argument, the court may decide on the basis of the record as it stands. (2) A judgment may be handed down on the basis of the record as it stands only if oral argument has been submitted in an earlier hearing. The judgment may be pronounced at the earliest after two (2) weeks. The court is to communicate, by simple letter, the details of the hearing for which the pronouncement of the ruling on the case is scheduled to the party that has failed to appear. The court shall determine a new hearing for oral argument should this
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party file a corresponding application with the court, at the latest on the seventh (7th) day prior to the hearing scheduled for the pronouncement of the ruling, provided that the party demonstrates to the satisfaction of the court that it has failed to appear through no fault of its own and that it was unable to apply in due time for a deferral of the hearing. (3) Should the court not decide on the basis of the record as it stands, and should it not postpone the hearing pursuant to section 227, it shall order the proceedings stayed.
Section 252 Appellate remedies available in the event of proceedings being suspended
A complaint subject to a time limit may be lodged against the decision by which the suspension of the proceedings is ordered or refused to be granted based on the stipulations of the present Title or based on other statutory provisions.
Book 2 Procedural rules for proceedings before the courts of first instance
Chapter 1 Proceedings before the regional courts (Landgerichte)
Title 1 Proceedings until a judgment is entered
Section 253 Statement of claim
(1) The complaint shall be brought by serving a written pleading (statement of claim). (2) The statement of claim must include:
1. The designation of the parties and of the court;
2. Exact information on the subject matter and the grounds for filing the claim, as well as a precisely specified petition.
(3) Furthermore, the statement of claim is to provide:
1. Information as to whether, prior to the complaint being brought, attempts were made at mediation or any other proceedings serving an alternative resolution of the conflict were pursued, and shall also state whether any reasons exist preventing such proceedings from being pursued;
2. Wherever the subject matter of the litigation does not consist of a specific amount of money, information on the value of the subject matter of the litigation insofar as this is relevant for determining whether or not the court has jurisdiction;
3. And it shall state whether any reasons would prevent the matter from being ruled on by a judge sitting alone.
(4) Moreover, the general regulations as to preparatory written pleadings are to be applied also to the statement of claim. (5) The statement of claim as well as any other petitions and declarations by a party that are to be served are to be submitted to the court in writing, with the number of copies being enclosed that are required for serving or communicating such documents. Should the statement of claim be filed as a digital document, no copies need be enclosed.
Section 254 Action by stages
Should an action for presentation of accounts, or for the production of a schedule of assets, or for a statutory declaration to be made in lieu of an oath, be consolidated with an action for the surrender of whatever the defendant owes under the legal relationship giving rise to the legal dispute, the exact information on the performance being claimed by the plaintiff may be
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reserved until the accounts have been presented, the schedule of assets has been produced, or the statutory declaration in lieu of an oath has been made.
Section 255 Determination of periods in the judgment
(1) In the event that the defendant does not satisfy the claim brought against him prior to the expiry of a period that has been set, and the plaintiff thus has the right to demand compensation of damages for non-performance of contract, or to pursue the avoidance of a contract, the plaintiff may demand that the deadline therefor be determined in the judgment. (2) The same shall apply where the plaintiff has the right to demand that an authority issue a directive in the event that the defendant does not provide the security within the deadline imposed on him, as well as in the case provided for by section 2193 (2) of the Civil Code (Bürgerliches Gesetzbuch, BGB) governing the stipulation of a deadline by which a condition is to be met.
Section 256 Action for acknowledgment
(1) A complaint may be filed to establish the existence or non-existence of a legal relationship, to recognise a deed or to establish that it is false, if the plaintiff has a legitimate interest in having the legal relationship, or the authenticity or falsity of the deed, established by a judicial ruling at the court’s earliest convenience. (2) Until the closure of the hearing subsequent to which the judgment will be handed down, the plaintiff may petition, by extending the claim, and the defendant may petition, by bringing counterclaims, that a legal relationship that has become a matter of dispute in the course of the court proceedings be acknowledged by judicial ruling if the decision on the legal dispute depends, either wholly or in part, on such legal relationship existing or not existing.
Section 257 Action for future payment or for the clearing of premises
Should the assertion of a monetary claim that does not depend on any counterperformance, or the assertion of a claim to a property being cleared or spaces being vacated that serve other than residential purposes, be tied to a calendar date, an action may be filed for future payment or clearing of the premises.
Section 258 Action for recurrent performance
An action may be filed also for the future payment of any recurrent performance scheduled to become due only after the judgment has been entered.
Section 259 Action brought due to concern that performance might not be made within the period
set Besides the cases set out in section 257 and section 258, an action for future performance may be brought wherever the circumstances give rise to the justified concern that the debtor might avoid performing in due time by extracting himself from his obligations.
Section 260 Consolidation of claims
Several claims of the plaintiff against one and the same defendant may be consolidated in one action, even if they are based on different grounds, if the court hearing the case is competent for the entirety of the claims and if the claims may permissibly be dealt with in the same type of proceedings.
Section 261 Pending suit
(1) By the complaint being brought, the dispute shall become pending.
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(2) A claim lodged only in the course of the proceedings shall become pending at that point in time at which the claim was lodged in the hearing or at which a written pleading in conformance with the requirements of section 253 (2) number 2 has been served. (3) Once the dispute is pending, this will have the following effects:
1. For as long as the dispute is pending, none of the parties may bring the dispute before another court or tribunal;
2. The jurisdiction of the court hearing the case will not be affected by any change to the circumstances giving rise to its competence.
Section 262 Other effects of the dispute being pending
The stipulations of civil law as regards the other effects of a dispute having become pending shall remain unaffected hereby. These effects, as well as all effects tied by the stipulations of civil law to an action being conducted; notice of an action being given or its being registered with the court; to the summons of the defendant; or to his entering an appearance shall all arise without prejudice to the rule set out in section 167 once the complaint has been brought.
Section 263 Modification of the suit filed
Upon the dispute having become pending, the complaint may be modified if the defendant consents to this being done, or if the court believes such a modification to be expedient.
Section 264 No modification of the suit filed
It is not to be regarded a modification of the suit filed if, without any change to the cause of action:
1. The statements made as to the facts and circumstances or the legal considerations are amended or corrected;
2. The demand for relief is extended or limited in terms of the main action or as regards ancillary claims;
3. As a result of later changes, a different object, or the interest in same, is claimed instead of the object originally claimed.
Section 265 Disposition or assignment of the object in dispute
(1) The fact that the dispute has become pending does not rule out the right enjoyed by either of the parties to dispose over the object in dispute or to assign the claim being asserted. (2) Such disposition or assignment shall not affect the proceedings. Without the opponent’s consent, the successor in title shall not be entitled to assume the proceedings as the primary party instead of the predecessor in title, nor shall it be entitled to pursue a third-party intervention through an action against the two parties to a pending lawsuit. Should the successor in title act in support of a party to the dispute as an intervening third party, section 69 is not applicable. (3) Should the plaintiff have disposed of or assigned his rights, the objection may be raised that he is no longer authorised to assert the claim wherever the judgment handed down against the successor in title pursuant to section 325 would not be valid.
Section 266 Disposition of a plot of real estate
(1) Should a legal dispute be pending between the possessor and a third party as to whether a right being claimed for a property exists or does not exist, or as to whether an obligation
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encumbering a property exists or does not exist, then the successor in title to any property so disposed of shall be entitled and, upon a corresponding application having been filed by the opponent, shall be obligated to assume the legal dispute as the primary party, regardless of his circumstances. This shall apply mutatis mutandis to any legal dispute as to whether an obligation encumbering a registered ship or ship under construction exists or does not exist. (2) This provision is not to be applied insofar as it is contravened by the stipulations of civil law benefiting those parties deriving rights from a person who is not a beneficiary in this regard. In such event, provided the plaintiff has disposed of the property, the rules set out in section 265 (3) shall apply.
Section 267 Presumed consent to the modification of a suit filed
It is to be assumed that the defendant has consented to the modification of a suit filed if he has made an appearance in a hearing regarding the modified action without objecting to such modification.
Section 268 Decision is incontestable
The decision that the action has not been modified or that the modification is to be admitted is incontestable.
Section 269 Withdrawal of legal action
(1) The action may be withdrawn without the consent of the defendant until the time at which the defendant is to be first heard on the merits of the case. (2) A declaration is to be made to the court as to the action having been withdrawn and, insofar as this is required in order to ensure that the withdrawal is effective, the defendant is to declare his consent to such withdrawal. Unless declared at the hearing, the action shall be withdrawn by submitting a written pleading to the court. The written pleading is to be served on the defendant if his consent is required for the withdrawal of the action to be effective. Should the defendant fail to oppose the withdrawal of legal action within a statutory period of two (2) weeks from the date on which the written pleading was served, he shall be deemed to have consented to same, provided that this consequence was indicated to the defendant previously. (3) Should the action be withdrawn, the legal dispute is to be considered as not having become pending; any judgment already given that has not yet become final and binding shall become ineffective without this requiring its express repeal. The plaintiff is under obligation to bear the costs of the legal dispute unless a final and binding decision has been given in their regard or unless they are to be imposed on the defendant for any reason. Should the occasion for bringing the action have ceased to exist prior to the dispute becoming pending and the complaint subsequently be withdrawn, the obligation to bear the costs of the proceedings shall be determined at the court’s equitable discretion, taking account of the circumstances and facts as known at that time as well as the status of the dispute thus far; this shall also apply in the event the complaint has not been served. (4) The court shall rule by court order, upon a corresponding application having been filed, as to the effects resulting pursuant to subsection (3). Where a defendant has been granted assistance with the court costs, the court is to decide on the costs ex officio. (5) A complaint subject to a time limit may be filed against the court order if the value of the claim in the main action is greater than the amount set out in section 511. Such complaint shall be deemed inadmissible if there are no remaining admissible appellate remedies regarding the petition on the assessment of costs (section 104). (6) Should the complaint be brought once again, the defendant may refuse to enter any appearance until the costs have been reimbursed.
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Section 270 Service; communication by simple letter
To the exception of the statement of claim and such written pleadings that contain substantive petitions, written pleadings and other declarations by the parties are to be communicated by simple letter unless the court orders them to be served. When mailing such documents, the communication shall be deemed to have been made on the business day following the day on which they were mailed in those cases in which the residence of the recipient party is located in the local postal district, and on the second business day thereafter for any other locations, unless the party can demonstrate in a satisfactory way that it has not received the communication, or only at a later date.
Section 271 Service of the statement of claim
(1) The statement of claim is to be served without undue delay. (2) In serving the documents, the defendant is to be instructed to appoint an attorney should he intend to defend against the claim.
Section 272 Determination of the form of procedure
(1) As a general rule, the legal dispute is to be dealt with and terminated in a hearing for oral argument that has been comprehensively prepared for (main hearing). (2) The presiding judge shall either make arrangements for an advance first hearing at which oral argument is to be heard (section 275) or shall have preliminary proceedings conducted in writing (section 276). (3) The conciliation hearing and the hearing for oral argument should be arranged for as early a time as possible. (4) Matters entailing the vacation of premises are to have priority and shall be conducted on an expedited basis.
Section 273 Preparations for the hearing
(1) The court is to initiate the necessary preparatory measures in due time. (2) By way of preparing for the hearing, the presiding judge or a member of the court hearing the case delegated by the presiding judge may in particular:
1. Direct the parties to amend their preparatory written pleadings or to provide further information, and may in particular set a deadline for explanations to be submitted regarding certain items in need of clarification;
2. Request that public authorities or public officials communicate records or provide official information;
3. Order parties to appear at the hearing in person;
4. Summon witnesses, to whom a party has referred, and experts to appear at the hearing, he may also issue an order pursuant to section 378;
5. Issue orders pursuant to section 142 and section 144. (3) Orders pursuant to subsection (2) number 4 and, insofar as the orders are not to be issued to a party, orders pursuant to subsection (5) shall be issued only if the defendant has already opposed the claim being lodged by the action. For the orders pursuant to subsection (2) number 4, section 379 shall apply mutatis mutandis. (4) The parties are to be notified of each order. Should the parties be ordered to appear in person, the stipulations of section 141 subsection (2) and subsection (3) shall apply.
Section 274 Summons of the parties; time for entering an appearance
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(1) Once the date for the hearing for oral argument has been determined, the court registry is to be instructed to summon the parties. (2) The summons is to be served on the defendant together with the statement of claim if the court has determined an advance first hearing. (3) A period of at least two (2) weeks must lapse from the time at which the statement of claim is served and the date of the hearing (time for entering an appearance). Should the documents be served abroad, the presiding judge is to determine the time for entering an appearance in arranging the date of the hearing.
Section 275 Advance first hearing
(1) By way of preparing for the advance first hearing, the presiding judge or a member of the court hearing the case delegated by the presiding judge may set a deadline for the defendant by which he is to submit a written statement of defence. Alternatively, the defendant is to be instructed to have an attorney he is to appoint submit to the court, in a written pleading and without undue delay, any means of defence that are to be brought before the court; section 277 (1), second sentence, shall apply mutatis mutandis. (2) Should the proceedings not be conclusively dealt with and terminated at the advance first hearing, the court shall issue all orders still required to prepare for the main hearing for oral argument. (3) At the advance first hearing, the court shall set a deadline for submitting a written statement of defence should the defendant not yet have responded to the complaint at all, or not sufficiently, and wherever no deadline pursuant to subsection (1), first sentence, had been set. (4) At the advance first hearing, or upon having received the statement of defence, the court may set a deadline for the plaintiff within which he is to state his position in writing as regards the statement of defence. The presiding judge may set such deadline also outside of the hearing.
Section 276 Preliminary proceedings conducted in writing
(1) Should the presiding judge not arrange a date for the advance first hearing for oral argument, he shall instruct the defendant, in serving the complaint upon him, that should the defendant wish to defend against the complaint, he should notify the court of this fact within a statutory period of two (2) weeks after the statement of claim has been served on him; the plaintiff is to be informed of these instructions having been issued. Concurrently, a deadline is to be set for the defendant within which he is to submit his written statement of defence, which period shall be at least a further two (2) weeks. For any service of the complaint to a recipient abroad, the presiding judge is to set the deadline in accordance with the first sentence. (2) Concurrently with these instructions, the defendant is to be instructed of the consequences should he fail to meet the deadline imposed on him pursuant to subsection (1), first sentence, and also as regards the fact that he may only declare his intention to oppose the complaint via an attorney he is to appoint. The instructions given as to the option of a default judgment being entered pursuant to section 331 (3) shall also address the legal consequences set out in sections 91 and 708 number 2. (3) The presiding judge may set a deadline for the plaintiff within which he is to state his position in writing as regards the statement of defence.
Section 277 Statement of defence; counterplea
(1) The defendant is to state the means by which he defends his case in the statement of defence, provided that based on the circumstances of the proceedings, this corresponds to a diligent pursuit of the court proceedings and serves to promote them. Furthermore, the
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statement of defence is to address any reasons that would prevent the matter from being ruled on by a judge sitting alone. (2) The defendant is to be instructed that the statement of defence needs to be submitted to the court by an attorney he must appoint, and of the consequences should he fail to meet a deadline imposed on him. (3) The period for submitting a written statement of defence pursuant to section 275 subsection (1), first sentence, and pursuant to subsection (3) shall be at least two (2) weeks. (4) Subsection (1), first sentence, and subsections (2) and (3) apply mutatis mutandis to the written statement of position regarding the statement of defence.
Section 278 Amicable resolution of the dispute; conciliation hearing; settlement
(1) In all circumstances of the proceedings, the court is to act in the interests of arriving at an amicable resolution of the legal dispute or of the individual points at issue. (2) For the purposes of arriving at an amicable resolution of the legal dispute, the hearing shall be preceded by a conciliation hearing unless efforts to come to an agreement have already been made before an alternative dispute-resolution entity, or unless the conciliation hearing obviously does not hold out any prospects of success. In the conciliation hearing, the court is to discuss with the parties the circumstances and facts as well as the status of the dispute thus far, assessing all circumstances without any restrictions and asking questions wherever required. The parties appearing are to be heard in person on these aspects. (3) The parties shall be ordered to appear in person at the conciliation hearing as well as at any other conciliation efforts. Section 141 (1), second sentence, subsections (2) and (3) shall apply mutatis mutandis. (4) Should neither of the parties appear at the conciliation hearing, the proceedings shall be ordered stayed. (5) The court may refer the parties for the conciliation hearing, as well as for further attempts at resolving the dispute, to a judge delegated for this purpose, who is not authorised to take a decision (Güterichter, conciliation judge). The conciliation judge may avail himself of all methods of conflict resolution, including mediation. (6) A settlement may also be made before the court by the parties to the dispute by submitting to the court a suggestion, in writing, on how to settle the matter, or by their accepting, in a corresponding brief sent to the court, the suggested settlement made by the court in writing. The court shall establish, by issuing a corresponding order, that the settlement concluded in accordance with the first sentence has been reached, recording the content of same in the order. Section 164 shall apply mutatis mutandis. Section 278a Mediation, alternative conflict resolution (1) The court may suggest that the parties pursue mediation or other alternative conflict resolution procedures. (2) Should the parties to the dispute decide to pursue mediation or other alternative conflict resolution procedures, the court shall order the proceedings stayed.
Section 279 Hearing for oral argument
(1) Should a party fail to appear at the conciliation hearing or should the conciliation hearing not meet with success, the hearing (advance first hearing or main hearing for oral argument) is to be held immediately thereafter. In all other cases, a hearing for oral argument is to be arranged without undue delay. (2) In the main hearing for oral argument, the taking of evidence shall immediately follow the hearing in which the dispute as such is dealt with. (3) Following the taking of evidence, the court is to once again discuss with the parties the circumstances and facts as well as the status of the dispute thus far and, to the extent possible at this stage, the results obtained in taking evidence.
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Section 280 Separate hearing on the admissibility of the action
(1) The court may order the admissibility of the action to be assessed at a separate hearing. (2) Should an interlocutory judgment be given, it is to be regarded as a final judgment where the appellate remedies are concerned. However, upon a corresponding application being made, the court may order oral argument on the merits of the case to be heard.
Section 281 Referral in the event the court does not have jurisdiction
(1) If, based on the regulations regarding the local or substantive competence of courts, the court’s lack of jurisdiction is to be pronounced, and provided it is possible to determine the competent court, the court before which the action was initially brought is to declare, upon corresponding application being made by the plaintiff, that it is not competent and is to refer the legal dispute to the competent court. Should several courts have jurisdiction, the dispute shall be referred to the court selected by the plaintiff. (2) Applications and declarations concerning the jurisdiction of the court may be filed with the records clerk of the court registry. The court order is incontestable. The legal dispute shall become pending with the court designated in the order upon the court having received the files. The order shall be binding upon this court. (3) The costs accrued in the proceedings before the court with which the action was initially brought shall be treated as part of the costs accruing in the proceedings before the court designated in the order. The additional costs accruing are to be imposed on the plaintiff also in the event he prevailed in the main action.
Section 282 Submissions to the court made in due time
(1) In the hearing, each party is to submit to the court its means of challenge or defence, specifically allegations, denials, objections, defence pleas, evidence and objections to evidence submitted, as promptly as, based on the circumstances of the proceedings, this corresponds to a diligent pursuit of the court proceedings and serves to promote them. (2) Petitions and means of challenge or defence regarding which it is foreseeable that the opponent will be unable to react to them without previously making inquiries, are to be communicated prior to the hearing by a preparatory written pleading in such time as to enable the opponent to still make the necessary inquiries. (3) Concurrently, the defendant is to file any objections concerning the admissibility of the complaint, and is to do so prior to being heard on the merits of the case. Should, prior to the hearing, a deadline have been set for him by which he is to submit his statement of defence, he is to raise his objections within this period.
Section 283 Time limit for written pleadings that react to an opponent’s submissions
Should a party not be able to make a statement regarding the opponent’s submission to the court because this was not communicated to it in due time prior to the hearing, the court may determine, upon corresponding application being made by that party, a time limit within which the party may submit its statement in a written pleading to complete its earlier submissions; concurrently, a hearing shall be arranged at which the decision is to be pronounced. The court must take into account, in its decision, any declaration submitted within the time limit set and may take into account any statement submitted late.
Section 283a Court order for securitisation
(1) Where an action for the vacation of premises is joined to an action for payment under the same legal relationship, the court hearing the case shall order, upon the plaintiff having filed a corresponding application, that the defendant is to provide security for the monetary claims that have fallen due after the matter became pending, provided that
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1. The action concerning these claims holds out significant prospects of success, and
2. A balanced consideration of the interests of both parties determines that the order is justified in that it will avert particular disadvantages from the plaintiff. It suffices to demonstrate the interests to the satisfaction of the court for them to be considered.
Where the parties are in dispute as regards the plaintiff’s right to increase the monetary claim, the court order for securitisation will not cover the amount by which the claim is increased. An immediate complaint may be lodged against a court order for securitisation. (2) The defendant is to submit proof that he has provided the security within a period to be set by the court. (3) Should the plaintiff prevail, the final judgment or any provision otherwise terminating the legal dispute is to state that the plaintiff is entitled to satisfy his claim from the security so provided. (4) Inasmuch as, pursuant to the final judgment or provision otherwise terminating the legal dispute, the plaintiff is not entitled to a claim in the amount of the security provided, the plaintiff is to compensate the defendant for the damages the latter has suffered as a result of having had to provide the security. Section 717 (2), second sentence, shall apply mutatis mutandis.
Section 284 Taking of evidence
The taking of evidence and the order for separate proceedings to take evidence, which is issued by a court order for evidence to be taken, are governed by the stipulations of Titles 5 through 11. The court may take evidence, provided it has obtained the consent of the parties to do so, in the manner it deems suitable. This consent may be limited to individual evidence taken. It may be revoked only in the event of a material change to the litigation circumstances; this must be done prior to the process of taking evidence commencing, to which the consent originally referred.
Section 285 Oral argument after evidence has been taken
(1) The parties to the dispute are to be heard in oral argument on the results obtained in taking evidence and are to state their case. (2) Should the evidence not have been taken before the court hearing the case, the parties to the dispute are to present their results based on the hearings on the evidence.
Section 286 Evaluation of evidence at the court’s discretion and conviction
(1) The court is to decide, at its discretion and conviction, and taking account of the entire content of the hearings and the results obtained by evidence being taken, if any, whether an allegation as to fact is to be deemed true or untrue. The judgment is to set out the reasons informing the conviction of the judges. (2) The court shall be bound to statutory rules of evidence only in the cases designated in the present Code.
Section 287 Investigation and determination of damages; amount of the claim
(1) Should the issue of whether or not damages have occurred, and the amount of the damage or of the equivalent in money to be reimbursed, be in dispute among the parties, the court shall rule on this issue at its discretion and conviction, based on its evaluation of all circumstances. The court may decide at its discretion whether or not – and if so, in which scope – any taking of evidence should be ordered as applied for, or whether or not any experts should be involved to prepare a report. The court may examine the party tendering
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evidence on the damage or the equivalent in money thereof; the stipulations of section 452 (1), first sentence, subsections (2) to (4) shall apply mutatis mutandis. (2) In the event of pecuniary disputes, the stipulations of subsection (1), sentences 1 and 2, shall apply mutatis mutandis also to other cases, insofar as the amount of a claim is in dispute among the parties and to the extent the full and complete clarification of all circumstances authoritative in this regard entails difficulties that are disproportionate to the significance of the disputed portion of the claim.
Section 288 Admission before the court
(1) The facts alleged by a party do not require any substantiation by evidence if, in the course of the legal dispute, they are admitted by the opponent in the course of a hearing, or are admitted by him for the record kept by the judge correspondingly delegated or requested. (2) The admission before the court need not be accepted in order to be effective.
Section 289 Additional statements made in an admission
(1) The effectiveness of an admission made before the court is not impaired by the fact that an allegation is added to it that includes an independent means of challenge or defence. (2) The extent to which a declaration made before the court that concedes certain matters is to be regarded as an admission, irrespective of other additional or restricting allegations, is to be determined based on the nature of the individual case.
Section 290 Revocation of an admission
The revocation of an admission made before the court shall impact its effectiveness only in those instances in which the revoking party proves that the admission was not truthful and was caused by an erroneous assumption. In this event, the admission ceases to be effective.
Section 291 Common knowledge
Facts that are common knowledge with the court need not be substantiated by evidence.
Section 292 Legal presumptions
Should the law make a presumption as to a certain fact being given, its opposite may admissibly be proven unless otherwise provided for by the law. This proof may also be established by petitioning the examination of a party pursuant to section 445.
Section 292a (repealed)
Section 293 Foreign law; customary law; statutes
The laws applicable in another state, customary laws, and statutes must be proven only insofar as the court is not aware of them. In making inquiries as regards these rules of law, the court is not restricted to the proof produced by the parties in the form of supporting documents; it has the authority to use other sources of reference as well, and to issue the required orders for such use.
Section 294 Demonstration of allegations to the satisfaction of the court
(1) Anyone who is to demonstrate an allegation as to fact to the satisfaction of the court may use all evidence and may also be permitted to make a statutory declaration in lieu of an oath. (2) Evidence that cannot be taken immediately shall not be admitted.
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Section 295 Objections to process
(1) The infringement of a rule to which the proceedings are subject, and in particular of a rule governing the form of a procedural action, no longer may be objected to if the party has waived the rule’s being applied, or if the party has failed to object to the irregularity at the next hearing taking place as a result of the corresponding proceedings or at the hearing in which reference was made to the rule, in spite of the fact that the party appeared at the hearing and that it was aware, or must have been aware, of the irregularity. (2) The above provision shall not be applied if any rules have been infringed, the compliance with which no party may effectively waive.
Section 296 Refusal to accept submissions made late
(1) Any means of challenge or defence submitted only after the deadline imposed in its regard (section 273 (2) number 1 and, insofar as this deadline has been set to a specific party, number 5, section 275 (1), first sentence, subsection (3) and subsection (4), section 276 (1), second sentence, subsection (3), section 277) are to be admitted at the court’s discretion and conviction only if admitting them to the proceedings would not delay the process of dealing with and terminating the legal dispute, or if the party provides sufficient excuse for such delay. (2) The court may refuse to admit any means of challenge or defence that, in contravention of the stipulations made in section 282 (1), are not submitted in due time or that, in contravention of the stipulations of section 282 (2), are not communicated in due time, if it finds at its discretion and conviction that admitting them to the proceedings would delay the process of dealing with and terminating the legal dispute, and that the delay is the result of gross negligence. (3) Any objections made, at too late a time, concerning the admissibility of the complaint and that the defendant may elect to forgo, are to be admitted only if the defendant provides sufficient excuse for the delay. (4) In the cases set out in subsections (1) and (3), the grounds precluding culpability are to be substantiated should the court so require.
Section 296a Submissions made following close of the hearing
Following close of the hearing, subsequent to which the judgment is handed down, no further means of challenge or defence may be submitted. Section 139 (5), section 156, and section 283 shall remain unaffected hereby.
Section 297 Form of filing petitions with the court
(1) The petitions are to be read out loud from the preparatory written pleadings. Insofar as the pleadings do not contain any petitions, these must be read out lout from a writing to be attached to the record of the hearing as an appendix. The presiding judge may also permit the petitions to be recorded with the registry for the files of the court. (2) The requirement of reading out loud the petitions cannot be substituted by the parties to the dispute referring to their written pleadings setting out such petitions.
Section 298 Hard copies for files
(1) A printout may be prepared of an electronic document (section 130a and section 130b) for inclusion in the files. (2) The hard copy must include a note:
1. As to the result of the integrity check performed for the document,
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2. As to whom the signature verification has established as the owner of the signature,
3. As to which time was established by signature verification as the time when the signature was inserted in the document.
(3) The electronic document is to be stored at least until the proceedings have been concluded as res judicata.
Section 298a Electronic file
(1) The court records of the dispute may be kept as electronic files. The Federal Government and the Land governments shall determine by statutory instrument for their sphere of responsibility the time onwards from which electronic files are to be kept, as well as the framework conditions in organisational and technical terms governing the creation, administration, and storage of the electronic files. The Land governments may confer, by statutory instrument, the corresponding authorisation upon the Land departments of justice. The admissibility of electronic files may be restricted to individual courts or proceedings. (2) Any documents and other records submitted on paper are to be changed to electronic format by way of replacing the original. Should the documents and records still be needed in paper format, they are to be stored at least until the proceedings have been concluded as res judicata. (3) The electronic document must include the note as to when and by whom the documents were changed to electronic format.
Section 299 Inspection of files; copies
(1) The parties may inspect the court records of the dispute and may have the court registry issue to them execution copies, excerpts, and copies. (2) The president of the court and his deputy may allow third parties to inspect the files without the consent of the parties if these third parties have demonstrated their legitimate interest to his satisfaction. (3) Should the court records of the dispute be kept as electronic files, the court registry shall grant inspection of the files by providing a hard copy of the files, by calling them up on a computer screen, or by transmitting them as electronic documents. The presiding judge may decide, at his discretion, to permit attorneys-in-fact who are a member of a chamber of attorneys to electronically access the content of the files. In allowing such electronic access to the content of the files, it is to be ensured that solely the attorney-in-fact will so access the files. In transmitting the files, the entirety of the documents is to be furnished with a qualified electronic signature and is to be protected against becoming known to unauthorised parties. (4) Drafts of judgments, orders, and rulings; the work supplied in preparing them; as well as the documents concerning the court’s coordination with others will not be made available, nor will they be communicated as copies.
Section 299a Data carrier archive
Once the court records of the dispute have been transferred, in accordance with the principles of due and proper procedure and by way of replacing the originals, to an image carrier or other data carrier, and once written proof exists that the copy is a true and complete copy of the original, then execution copies, excerpts, and copies of the image carrier or data carrier may be issued. In this event, any notes to be made on the original are to be affixed to the supporting documentary proof.
Title 2 Judgment
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Section 300 Final judgment
(1) Once the legal dispute is ready for the final decision to be taken, the court is to deliver this decision by a final judgment. (2) The same shall apply if only one of several proceedings, which were consolidated for the purpose of hearing concurrent oral argument and handing down the decision on all of them, is ready for the final decision to be taken.
Section 301 Partial judgment
(1) Should only one of several claims asserted by an action be ready for the final decision to be taken, or should only a part of a claim be ready, or, in the event of counterclaims having been brought, should only the complaint or the counterclaims be ready, the court is to deliver such decision by final judgment (partial judgment). A partial judgment may rule on part of a single claim that is in dispute both on its merits and as regards its amount only if, concurrently, a judgment is delivered on the merits of the remainder of the claim. (2) Should the court, based on the circumstances of the matter, deem it unreasonable to enter a partial judgment, it may forgo doing so.
Section 302 Judgment subject to a reservation of rights
(1) If the defendant has asserted that a counterclaim should be set off, and if only the proceedings regarding the claim as such are ready for decision, they may be ruled on with the decision as to the set-off being reserved. (2) Should the ruling not provide for any such reservation, a petition may be filed to amend the judgment in accordance with the provisions of section 321. (3) The judgment entered subject to the reserved decision on the set-off is to be regarded as a final judgment as regards the appellate remedies available and compulsory enforcement. (4) The legal dispute shall remain pending as regards the set-off for which the decision is reserved. Where it becomes apparent in the further course of the proceedings that the plaintiff’s claim was unfounded, the earlier judgment shall be reversed, the plaintiff’s claim shall be dismissed and the costs shall be ruled on otherwise. The plaintiff is under obligation to compensate the damage that the defendant has suffered by the judgment being enforced, or by his having made payments or taken other actions to avert such enforcement. The defendant may assert the claim to compensation of damages in the pending legal dispute; should the claim be asserted, it shall be deemed to have become pending at the date of the payment or other performance.
Section 303 Interlocutory judgment
Where an interlocutory dispute is ready for decision, the decision may be entered by interlocutory judgment.
Section 304 Interlocutory judgment as to the merits of a claim
(1) Should a claim be in dispute both on its merits and as regards its amount, the court may take a preliminary decision on the merits. (2) The ruling is to be deemed a final judgment for the appellate remedies available; however, the court may order, provided it has declared the claim to be justified and provided that a corresponding application has been made, that oral argument be heard on the claim’s amount.
Section 305 Judgment subject to the proviso of liability limited by inheritance law
(1) The fact that the heirs to an estate may assert the defence pleas to which they are entitled under section 2014 and section 2015 of the Civil Code (Bürgerliches Gesetzbuch,
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BGB) does not rule out that the court will find against the heirs, subject to the proviso of liability limited by inheritance law. (2) The same applies to the assertion of defence pleas to which the surviving spouse is entitled, in the event the marriage was subject to the continuing regime of common marital property pursuant to section 1489 (2) as well as section 2014 and 2015 of the Civil Code (Bürgerliches Gesetzbuch, BGB).
Section 305a Judgment subject to the proviso of liability limited by maritime law
(1) If the claim being asserted in the action is subject to the limitation of liability pursuant to section 611 subsection (1) or (3), sections 612 to 616 of the Commercial Code (Handelsgesetzbuch, HGB), and if the defendant claims that:
1. Further claims, regarding which he is able to limit his liability, have arisen from the same event and
2. The total amount of the claims is in excess of the maximum liability amounts determined in Article 6 or Article 7 of the Civil Liability Convention (section 611 (1), first sentence, of the Commercial Code) or in sections 612, 613 or 615 of the Commercial Code,
the court may, at its discretion and conviction, disregard such right to limit liability in its decision should this right, because of the uncertainty regarding the merits of the further claims or their amounts, impede its ability to deal with and terminate the legal dispute to a greater than negligible extent. The same shall apply wherever the claim to limitation of liability asserted in the complaint is subject to the stipulations of sections 4 to 5m of the Inland Waterways Act (Binnenschifffahrtsgesetz) and wherever the defendant asserts that further claims, regarding which he is able to limit liability, have arisen from the same event that in the aggregate exceed the maximum liability amounts determined for them in sections 5e to 5k of the Inland Waterways Act. (2) Where the court disregards the right to limit liability, the judgment shall be entered:
1. In the case provided for by subsection (1), first sentence, subject to the proviso that the defendant may assert his right to limit his liability if a fund has been established pursuant to the Civil Liability Convention, or if it is so established upon the right to limit liability being asserted,
2. In the case provided for by subsection (1), second sentence, subject to the proviso that the defendant may assert his right to limit his liability if a fund has been established pursuant to section 5d of the Inland Waterways Act, or if it is so established upon the right to limit liability being asserted.
Section 306 Waiver
Should, at the hearing, the plaintiff waive the claim asserted, he shall be dismissed with his claim should the defendant apply for such dismissal.
Section 307 Acknowledgment
Where a party acknowledges a claim asserted against it, either as a whole or in part, it is to be sentenced in accordance with this acknowledgment. No hearing shall be required in this regard.
Section 308 Binding effect of the parties’ petitions
(1) The court does not have authority to award anything to a party that has not been petitioned. This shall apply in particular to usufruct or fruits, interest, and other ancillary claims.
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(2) The court is to rule on the obligation to bear the costs of the proceedings even without a corresponding petition having been filed.
Section 308a Decisions handed down in disputes between lessor and lessee without a petition
being required (1) Should the court hearing a dispute regarding the vacation of residential premises between a lessor and a lessee, or a lessee and a sublessee, hold that the claim for vacation is unfounded because, pursuant to sections 574 to 574b of the Civil Code (Bürgerliches Gesetzbuch, BGB), the lessee may demand that the lessor-lessee relationship be continued, it is to rule in its judgment, even without any petition having been filed, on the term for which the lease relationship is to continue and subject to which changes to the conditions of contract are to be made. The parties to the dispute are to be heard prior to the judgment being pronounced. (2) The pronouncement is separately and independently contestable.
Section 309 Judges entering the judgment
The judgment may be handed down only by those judges who have attended the hearing on which the judgment is based.
Section 310 Hearing for pronouncement of the judgment
(1) The judgment shall be pronounced at the hearing at which the court proceedings are declared terminated, or at a hearing to be arranged immediately. This will be set for a date later than three (3) weeks after the last hearing only for grave cause, this being particularly the scope or the complexity of the matter. (2) Should the judgment not be pronounced at the hearing at which the court proceedings are declared terminated, it must be fully and completely worded at the time of its pronouncement. (3) Service of the judgment shall replace the pronouncement of judgments based on the defendant's acknowledgment and default judgments, which are entered without a hearing pursuant to section 307 and section 331 (3). The same shall apply to any ruling overruling the protest entered against a default judgment (section 341 (2)).
Section 311 Form of pronouncing the judgment
(1) The judgment shall be entered in the name of the people. (2) The judgment is pronounced by reading out loud its operative provisions. Such reading of the operative provisions of the judgment may be replaced by reference being made to same should none of the parties have appeared at the hearing at which the judgment is pronounced. Default judgments, judgments based on the defendant's acknowledgment, as well as judgments entered as a consequence of the legal action having been withdrawn or of the claim lodged by the action being waived, may be pronounced even if the operative provisions of the judgment have not yet been put into writing. (3) Wherever this is deemed to be reasonable, the reasons on which a ruling is based will be pronounced by their being read out loud or by the essential content being communicated verbally. (4) Should the ruling not be pronounced at the hearing at which the court proceedings are declared terminated, the presiding judge may pronounce it in the absence of the other members of the court hearing the case.
Section 312 Presence of the parties
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(1) The pronouncement of the judgment shall be effective regardless of whether or not the parties are present. The ruling shall be deemed to have been pronounced also to any party that has failed to appear at the hearing. (2) The authority of a party to continue the proceedings based on a judgment that has been pronounced, or to make use of the judgment in any other way, shall not depend on its having been served on the opponent unless otherwise provided for by the present Code.
Section 313 Form and content of the judgment
(1) The judgment shall set out:
1. The designation of the parties, their legal representatives, and the attorneys of record;
2. The designation of the court and the names of the judges contributing to the decision;
3. The date on which the court proceedings were declared terminated;
4. The operative provisions of a judgment;
5. The merits of the case;
6. The reasons on which a ruling is based. (2) The section addressing the facts and the merits of the case is to summarise, in brief and based on the essential content, the claims asserted and the means of challenge or defence brought before the court, highlighting the petitions filed. The details of the circumstances and facts as well as the status of the dispute thus far are to be included by reference being made to the written pleadings, the records of the hearings, and other documents. (3) The reasoning for the judgment shall contain a brief summary of the considerations of the facts and circumstances of the case and the legal aspects on which the decision is based.
Section 313a Purposeful omission of merits of the case and reasons on which a ruling is based
(1) If no appellate remedies are admissible against the ruling, and this is certain without a doubt, no section addressing the facts and the merits of the case need be included in the judgment. In such event, the reasons on which the ruling is based also do not need to be set out, provided the parties to the dispute have waived their being set out, or if their essential content has been included in the record of the hearing. (2) Should the judgment be pronounced at the hearing at which the court proceedings are declared terminated, neither a section addressing the facts and the merits of the case need be included in the judgment, nor the reasons on which the ruling is based, if both parties waive appellate remedies against the judgment. Should the judgment be contestable only for one party, a declaration of waiver by that party shall suffice. (3) The waiver pursuant to subsections (1) or (2) may be declared already prior to the judgment being pronounced and must have been declared to the court at the latest within one (1) week following close of the hearing. (4) Subsections (1) to (3) are not to be applied in the event of a party being sentenced to recurrent performance that will become due in the future, or if it is to be expected that the judgment will be enforced abroad. (5) Should it be intended to enforce abroad a ruling that neither addresses the facts and the merits of the case, nor provides the reasons on which it is based, the rules governing the completion of default judgments and judgments based on an acknowledgment by the defendant shall apply mutatis mutandis.
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Section 313b Default judgment, judgment based on an acknowledgment by the defendant, and
judgment based on a waiver having been declared (1) Default judgments, judgments based on an acknowledgment by the defendant, or judgments based on a waiver having been declared need not address the facts and the merits of the case, nor must they cite the reasons on which they are based. The respective ruling is to be designated as a default judgment, judgment based on an acknowledgment by the defendant, or judgment based on a waiver having been declared. (2) In its abridged form as provided for by subsection (1), the judgment may be placed on the original or copy of the complaint included in the files, or on a separate sheet to be attached to it. The judgment need not set out the names of the judges. The judgment is to include the designation of the parties, their legal representatives, and their attorneys of record only to the extent that this information deviates from the information provided in the statement of claim. Should the plaintiff prevail, the operative provisions of the judgment may include the statement of claim by reference. Should the judgment be written on a sheet of paper that is attached to the statement of claim, the court seal is to be affixed to the place at which they are joined, or the documents are to be joined using tacking thread and a seal. (3) Subsection (1) shall not be applied if it is to be expected that the default judgment or the judgment based on an acknowledgment by the defendant is intended to be enforced abroad. (4) Subsection (2) shall not be applied if the court records of the dispute are kept as electronic documents.
Section 314 Evidentiary value of the section addressing the facts and the merits of the case
The section of the ruling that addresses the facts and the merits of the case shall establish evidence for the submissions made by the parties in oral argument. Such evidence can be invalidated only by the record of the hearing.
Section 315 Signature by judges
(1) The judgment is to be signed by the judges contributing to the decision. Should a judge be prevented from signing the ruling, this shall be noted, with the reasons being cited, at the bottom of the ruling by the presiding judge, and should the presiding judge likewise be prevented from doing so, it shall be noted by the most senior among the associate judges. (2) A ruling pronounced at the hearing at which the court proceedings are declared terminated shall be forwarded as a completely worded document to the court registry prior to the expiry of three (3) weeks, calculated from the date on which the ruling was pronounced. Should, as an exception, this not be possible, the judgment is to be forwarded to the court registry, signed by the judges, without the section addressing the facts and the merits of the case and without the reasons on which the ruling is based. In such event, the section addressing the facts and the merits of the case and the reasons on which the ruling is based shall be prepared shortly thereafter, shall be signed separately by the judges, and shall be forwarded to the court registry. (3) The records clerk of the court registry is to note on the judgment the date on which it was pronounced or on which it was served pursuant to section 310 (3) and is to sign this note. Where the court records of the dispute are kept as electronic documents, the records clerk of the court registry is to record the note in a separate document. This document is to be joined to the judgment such that it cannot be separated.
Section 316 (repealed)
Section 317 Service of the judgment and its execution
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(1) Judgments shall be served as a copy on the parties; default judgments that have been pronounced shall be served only on the party that has not prevailed in the dispute. Service of the judgment in accordance with the stipulations of section 310 (3) shall be deemed compliant with this rule. Where petitioned by the parties in congruent declarations, the presiding judge may defer service of judgments that have been pronounced until the expiry of five (5) months following pronouncement of the judgment. (2) Execution copies will be issued only upon corresponding application being made, and solely in paper format. For as long as the judgment has not been pronounced and has not been signed, no execution copies, excerpts, or copies may be issued. Any execution of the judgment that a party may request shall be issued without the section addressing the facts and the merits of the case and the reasons on which a ruling is based; this shall not apply if the party requests to have a complete execution issued to it. (3) A hard copy of a judgment, which exists as an electronic document (section 130b), as provided for by section 298, may be issued as an execution copy, in excerpts and as a copy. (4) The execution copies and excerpts of judgments are to be signed by the records clerk of the court registry and the court seal is to be affixed to them. (5) Any judgment prepared in the abridged format pursuant to section 313b (2) shall be executed in the same manner, using a certified copy of the statement of claim, or in such manner that the judgment is completed by the inclusion of the information designated in section 313 (1) numbers 1 to 4. The copy of the statement of claim may be certified by the records clerk of the court registry or by the plaintiff’s attorney.
Section 318 Court bound by its ruling
The court is bound to the decision set out in its final and interlocutory judgments.
Section 319 Correction of the judgment
(1) Typographical errors, computational errors and similar, obvious inaccuracies in the judgment are to be corrected by the court at any time, also ex officio. (2) The order mandating such a correction is to be noted on the judgment and on the execution copies of same. Should the order as to the correction be made in the form provided for by section 130b, it is to be recorded in a separate electronic document. This document is to be joined to the judgment such that it cannot be separated. (3) There are no appellate remedies available against an order dismissing the petition for correction; complaints subject to a time limit may be filed against an order mandating a correction.
Section 320 Correction of the judgment’s section addressing the facts and the merits of the case
(1) Should the section in a judgment addressing the facts and the merits of the case contain inaccuracies not governed by the stipulations of the preceding section, or omissions, obscure passages, or contradictions, their correction may be petitioned for within a period of two (2) weeks by submitting a written pleading to this effect. (2) The period shall commence upon the fully worded ruling having been served. The petition may be filed already prior to the time at which the period has commenced running. Any correction of the section addressing the facts and merits of the case shall be ruled out unless a petition for it has been filed within three (3) months from pronouncement of the judgment. (3) The petition shall be heard in oral argument should one of the parties have filed a corresponding petition. (4) The court shall rule without taking evidence. Solely those judges shall contribute to the decision who contributed to the original judgment. Should a judge be prevented from so contributing, the presiding judge’s vote shall be the casting vote in the event of any ties, and should the presiding judge be prevented from so contributing, the vote of the most senior judge shall be the casting vote. This court order is incontestable. The order mandating such
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a correction is to be noted on the judgment and on the execution copies of same. Should the order as to the correction be made in the form provided for by section 130b, it is to be recorded in a separate electronic document. This document is to be joined to the judgment such that it cannot be separated. (5) Any correction of the section addressing the facts and the merits of the case shall not result in modifying the remainder of the judgment.
Section 321 Amendment of the judgment
(1) Should a principal claim or subsidiary claim asserted by a party have been overlooked as a whole or in part in the section addressing the facts and the merits of the case originally established or retroactively corrected, or should the final decision have overlooked the matter of the costs, as a whole or in part, the judgment is to be amended by a subsequent ruling upon corresponding petition having been filed.
(2) Within a period of two (2) weeks, which shall begin running upon the judgment having been served, the petition for a subsequent ruling must be filed by submitting a written pleading to this effect. (3) Subsequent to the petition, a hearing for oral argument is to be arranged. The written pleading setting out the petition is to be served on the petitioner’s opponent, together with the summons to this hearing. (4) The hearing for oral argument shall address as its subject matter solely that part of the legal dispute that has not been dealt with and terminated.
Section 321a Redress granted in the event a party’s right to be given an effective and fair legal
hearing has been violated (1) Upon an objection having been filed by the party adversely affected by the decision, the proceedings are to be continued if:
1. No appellate remedy or any other legal remedy is available against the decision, and
2. The court has violated the entitlement of this party to be given an effective and fair legal hearing and this has significantly affected the decision.
No objection may be filed against any decision preceding the final decision. (2) The objection is to be filed within a statutory period of two (2) weeks upon the party having become aware of the violation of the right to be given an effective and fair legal hearing; the time at which it so becomes aware is to be substantiated. Following the expiry of one (1) year from the issuance of the decision challenged, an objection may no longer be filed. Decisions communicated by simple letter shall be deemed to have been issued following the third (3rd) day on which they were sent by regular mail. The objection is to be lodged in writing with the court whose decision is being challenged. The objection must designate the specific decision being challenged and must demonstrate that the prerequisites set out in subsection (1), first sentence number 2 are fulfilled. (3) To the extent required, the opponent is to be given the opportunity to state his position. (4) The court is to review ex officio whether the objection as such is an available remedy, and whether it has been lodged in keeping with statutory requirements as to form and time. Should one of these requirements not have been met, the objection is to be overruled as inadmissible. Should the objection be without justification, the court shall dismiss it. The decision shall be handed down by an incontestable order. The grounds on which the order is based shall be briefly summarised. (5) Wherever the objection is justified, the court shall grant the redress sought by continuing the proceedings to the extent mandated as a result of the objection. The status of the
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proceedings as given prior to the close of the hearing shall be reinstated. Section 343 shall apply mutatis mutandis. In proceedings conducted in writing, the close of the hearing shall be replaced by the date by which the written pleadings may be submitted.
Section 322 Legal validity of the judgment in substance
(1) Judgments are able to attain legal validity only insofar as the complaint or the claims asserted by counterclaims have been ruled on. (2) Should the defendant have asserted the set-off of a counterclaim, the decision as to the counterclaim not existing shall be able to attain legal validity up to the amount for which the set-off has been asserted.
Section 323 Modification of judgments
(1) Should a judgment stipulate an obligation to recurrent performance becoming due in the future, each part may petition for it to be modified. The complaint shall be admissible only if the facts and circumstances submitted by the plaintiff result in a material change to the factual or legal circumstances on which the decision is based. (2) The complaint may only be based on grounds that have arisen after the hearing on the facts in the preceding proceedings was closed, and which it is or was not possible to assert by way of entering a protest. (3) The modification is permissible for the time following the date on which the complaint has become pending. (4) Should the factual or legal circumstances have undergone a material change, the decision is to be adjusted while upholding the foundations on which it is based.
Section 323a Modification of settlement agreements and deeds
(1) Should a settlement agreement pursuant to section 794 (1) number 1 or an enforceable deed set out an obligation to recurrent performance becoming due in the future, each party may file an action for modification of the legal title. The complaint shall be admissible only if the plaintiff presents facts justifying such modification. (2) The further prerequisites and the scope of the modification shall be governed by the stipulations of civil law.
Section 323b Aggravated liability
In the event of section 818 (4) of the Civil Code (Bürgerliches Gesetzbuch, BGB) being applied, the pendency of a complaint for modification aiming at a reduction shall be tantamount to the pendency of a complaint for repayment of amounts paid.
Section 324 Action asserting supplementary claims to a security
If a sentence handed down pursuant to sections 843 to 845 or sections 1569 to 1586b of the Civil Code (Bürgerliches Gesetzbuch, BGB) regarding the payment of an annuity does not provide for any security having to be provided, the beneficiary may nonetheless demand that a security be provided if the obligor’s assets and financial circumstances have deteriorated significantly; subject to the same prerequisite, the beneficiary may demand that the security to be provided as determined in the judgment be increased.
Section 325 Subjective legal validity
(1) A judgment that has entered into force shall take effect for and against the parties to the dispute and the persons who have become successors in title of the parties after the matter has become pending, or who have obtained possession of the disputed object such that one of the parties or its successor in title has become constructive possessor.
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(2) The stipulations of civil law benefiting parties deriving rights from a person who is not a beneficiary in this regard shall apply mutatis mutandis. (3) Should the judgment concern a claim arising from a realty charge, mortgage, charge on land, or annuity charge on land, it shall also be effective, with regard to the property, against the successor in title to any property so encumbered that has been disposed of, wherever the successor in title was not aware of any dispute pending before the court. The judgment shall be effective against the highest bidder obtaining title to real property by court order at an enforced auction only wherever the pending dispute was registered by no later than the date of the auction, prior to the call for bids having been made. (4) If the judgment concerns a registered maritime mortgage, subsection (3), first sentence, shall apply mutatis mutandis.
Section 325a Legalisation effect of the decision taken in a model case for other cases of the same
nature The stipulations of the Capital Markets Model Case Act (Kapitalanleger- Musterverfahrensgesetz) shall apply to the further-reaching effects of the decision taken in the model case.
Section 326 Legal validity in the event of reversionary succession
(1) A judgment handed down in a dispute between a provisional heir and a third party regarding a claim directed against the provisional heir as the heir, or concerning a matter subject to reversionary succession, shall take effect for the reversionary heir, provided it enters into force prior to the reversionary succession occurring. (2) A judgment handed down in a dispute between a provisional heir and a third party concerning a matter subject to reversionary succession shall take effect also against the reversionary heir wherever the provisional heir is authorised to dispose over the subject matter without the consent of the reversionary heir.
Section 327 Legal validity in the event of a will being executed
(1) A judgment handed down in a dispute between an executor of a will and a third party concerning a right that is subject to administration by the executor shall take effect for and against the heir. (2) The same shall apply to any judgment handed down in a dispute between an executor of a will and a third party concerning a claim targeted against the estate, provided that the executor is authorised to pursue the legal dispute.
Section 328 Recognition of foreign judgments
(1) Recognition of a judgment handed down by a foreign court shall be ruled out if:
1. The courts of the state to which the foreign court belongs do not have jurisdiction according to German law;
2. The defendant, who has not entered an appearance in the proceedings and who takes recourse to this fact, has not duly been served the document by which the proceedings were initiated, or not in such time to allow him to defend himself;
3. The judgment is incompatible with a judgment delivered in Germany, or with an earlier judgment handed down abroad that is to be recognised, or if the proceedings on which such judgment is based are incompatible with proceedings that have become pending earlier in Germany;
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4. The recognition of the judgment would lead to a result that is obviously incompatible with essential principles of German law, and in particular if the recognition is not compatible with fundamental rights;
5. Reciprocity has not been granted. (2) The rule set out in number 5 does not contravene the judgment’s being recognised if the judgment concerns a non-pecuniary claim and if, according to the laws of Germany, no place of jurisdiction was established in Germany.
Section 329 Orders and rulings
(1) Any orders of the court given on the basis of a hearing must be pronounced. The stipulations of section 309, section 310 (1) and of section 311 (4) shall apply mutatis mutandis to orders of the court, while the stipulations of section 312 and of section 317 (2), first and second sentences, and section 317, subsections (3) and (4) shall apply mutatis mutandis to orders of the court and to rulings handed down by the presiding judge or the judge correspondingly delegated or requested. (2) Orders of the court that have not been pronounced, and rulings handed down by the presiding judge or the judge correspondingly delegated or requested that have not been pronounced, are to be communicated to the parties by simple letter. Wherever the decision sets out a date for a hearing as determined by the court or triggers a period, it is to be served on the parties. (3) Decisions forming an enforceable legal document or that are subject to complaints subject to a time limit or to a reminder pursuant to section 573 (1) are to be served.
Title 3 Default judgment
Section 330 Default judgment against the plaintiff
Should the plaintiff fail to appear at the hearing, a default judgment is to be delivered, upon a corresponding petition being filed, to the effect that the plaintiff’s complaint is dismissed.
Section 331 Default judgment against the defendant
(1) Should the plaintiff petition that a default judgment be delivered against the defendant because the latter has failed to appear at the hearing, it is to be presumed that the facts as submitted to the court by the plaintiff in oral argument have been acknowledged. This shall not apply to any submissions to the court regarding its jurisdiction pursuant to section 29 (2) and section 38. (2) Insofar as the demand for relief is justified by the facts as submitted to the court by the plaintiff, the court is to decide in accordance with the petition filed; insofar as this is not the case, the complaint is to be dismissed. (3) Should, in contravention of the stipulations made in section 276 (1), first sentence, and in subsection (2), the defendant have failed to notify the court of his intention to defend himself against the action, the court shall take its decision, upon a corresponding petition being filed by the plaintiff, without having held a hearing; this shall not apply if the defendant’s declaration is still received before the judgment signed by the judges has been forwarded to the court registry. Such petition may already be filed in the statement of claim. Taking the decision without holding a hearing shall be admissible also insofar as the submission made to the court by the plaintiff does not justify the demand for relief in an ancillary claim, provided that the plaintiff has been made aware of this option prior to the decision being given.
Section 331a Decision taken on the basis of the record as it stands
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Should a party fail to appear at the hearing scheduled for oral argument, the opponent may petition to have a decision given on the basis of the record as it stands instead of a default judgment; this petition is to be complied with if the facts and circumstances on which such a decision is based are deemed to have been sufficiently cleared up. Section 251a (2) shall apply mutatis mutandis.
Section 332 Hearing scheduled for oral argument
In the sense of the sections set out hereinabove, the term “hearing scheduled for oral argument” shall include also those hearings until which the hearing has been adjourned, or which are intended to continue prior or after an order has been issued for evidence to be taken.
Section 333 Failure of the party appearing to submit oral argument
A party shall be deemed to not have appeared if it does not submit any oral argument in spite of having appeared at the hearing.
Section 334 Incomplete oral argument
Should a party submit oral arguments at the hearing, but in being examined not make any declarations as to the facts and circumstances, records and documents, or petitions and applications, then the stipulations of the present Title are not applicable.
Section 335 Inadmissibility of a default decision
(1) The petition for a default judgment, or a decision on the basis of the record as it stands, is to be dismissed wherever:
1. The party appearing is unable to procure the proof or evidence demanded by the court on the grounds of circumstances that are to be taken into account ex officio;
2. The party that has failed to appear was not duly summoned, and in particular was not summoned in due time;
3. Facts as submitted to the court in oral argument, or a petition, have not been communicated by a written pleading to the party that has failed to appear;
4. In the case provided for by section 331 (3), the defendant was not informed of the deadline provided for by section 276 (1), first sentence, or he has not been instructed in accordance with section 276 (2);
5. In the cases provided for by section 79 (3), the refusal to accept a party as attorney-in-fact or the prohibition of continued representation are pronounced only at the hearing, or were not communicated in due time to the party not appearing.
(2) If a hearing has been adjourned, the party that has failed to appear is to be summoned to the new hearing.
Section 336 Appellate remedies available against dismissal
(1) A complaint subject to a time limit may be lodged against the decision dismissing a petition for a default judgment to be handed down. Where the decision is repealed, the party that has failed to appear is not to be summoned to the hearing subsequently arranged. (2) The refusal by the court to comply with a petition for a decision to be handed down on the basis of the record as it stands is incontestable.
Section 337 Adjournment ex officio
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The court shall adjourn the hearing on the petition for a default judgment, or for a decision on the basis of the record as it stands, if it is of the opinion that the time limit set by the presiding judge for entering an appearance, or the period he has indicated in the summons as the period lapsing between service of same and the date of the hearing, is too short, or if the court is of the opinion that the party is prevented from appearing at the hearing through no fault of its own. The party not appearing at the hearing shall be summoned to the hearing subsequently arranged.
Section 338 Protest
The party against which a default judgment has been delivered is entitled to enter a protest against the judgment.
Section 339 Period within which a protest may be entered
(1) The period within which protest may be entered shall amount to two (2) weeks; it is a statutory period and shall begin upon the default judgment having been served. (2) Should documents need to be served abroad or by publication of a notice, the court is to determine, in the default judgment or retroactively by issuing a separate order, the period within which protest may be entered.
Section 340 Notice of protest
(1) A protest is entered by submitting the notice of protest to the court hearing the case. (2) The notice of protest must include:
1. The reference number and designation of the judgment against which the protest is directed;
2. The declaration as to protest being entered against this judgment. Should the judgment be contested only in part, the scope in which it is to be so contested is to be specified. (3) The party is to set out its means of challenge or defence in the notice of protest provided that, based on the circumstances of the proceedings, this corresponds to a diligent pursuit of the court proceedings and serves to promote them, and the party is to also specify any objections it may have concerning the admissibility of the complaint. Upon a corresponding petition being filed, the presiding judge may extend the deadline by which the reasoning for the protest is to be submitted, if at his discretion and conviction the extension will not delay the legal dispute, or if the party demonstrates substantial grounds for doing so. Section 296 subsections (1), (3) and (4) shall apply mutatis mutandis. In serving the default judgment, attention is to be drawn to the consequence of any failure to meet the deadline.
Section 340a Service of the notice of protest
The notice of protest is to be served on the opponent party. In this context, it is to be specified when the default judgment was served and when the protest has been entered. The party is to submit the required number of copies together with the notice of protest. This shall not apply if the notice of protest is transmitted as an electronic document.
Section 341 Review of the protest
(1) The court is to review ex officio whether the protest as such is an available remedy and whether it has been entered in keeping with statutory requirements as to form and time. Should one of these requirements not be met, the protest is to be overruled as inadmissible. (2) The judgment may be handed down without a hearing having been held.
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Section 341a Hearing for oral argument regarding the protest
If a protest entered is not overruled as inadmissible, a hearing is to be scheduled for oral argument on the protest and on the merits of the case and the parties are to be informed of same.
Section 342 Effects of admissible protest
Should the protest be admissible, the status of the proceedings as given prior to the failure to comply with procedural requirements shall be reinstated in the extent covered by the protest.
Section 343 Decision subsequent to a protest
Insofar as the decision delivered as a result of the new hearing conforms to the decision of the default judgment, it is to be ruled that this decision be upheld. Should this prerequisite not be fulfilled, the default judgment shall be repealed by the new judgment.
Section 344 Costs of the failure to comply with procedural requirements
If the default judgment has been handed down as stipulated by law, the costs resulting from the failure to comply with procedural requirements are to be imposed on the defaulting party, unless they have been engendered by the opponent lodging an unfounded opposition, also in those cases in which a decision modifying the original judgment is delivered as a result of the objection.
Section 345 Second default judgment
Any party entering a protest, but failing to appear at the hearing scheduled for oral argument or failing to appear at the hearing until which oral argument has been adjourned, or failing to make itself heard on the merits of the case, shall not be entitled to enter further protest against the default judgment by which the protest is overruled.
Section 346 Waiver and withdrawal of protest
The rules governing the waiver of an appeal and its withdrawal shall apply mutatis mutandis to the waiver of protest and its withdrawal.
Section 347 Procedure in bringing counterclaims and interlocutory proceedings
(1) The stipulations of the present Title shall apply mutatis mutandis to any proceedings dealing with counterclaims that have been brought or that have as their subject matter the determination of the amount of a claim that has already been established on its merits. (2) Where a hearing was intended to be held solely to hear oral argument on interlocutory proceedings, the default proceedings and the default judgment shall be restricted to dealing with and terminating these interlocutory proceedings. The stipulations of the present Title shall apply mutatis mutandis.
Title 4 Procedure before a judge sitting alone
Section 348 Judge sitting alone as the court of decision
(1) The civil division shall take its decisions by one of its members acting as a judge sitting alone. This shall not apply where:
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1. The said member is a junior judge (Richter auf Probe) and, for a period of one (1) year, has not yet had adjudication tasks assigned to him under the court’s allocation of responsibilities for legal disputes governed by civil law; or
2. The division is responsible, according to the court’s allocation of responsibilities, because the legal dispute is classified in one of the following fields:
a) Disputes regarding claims arising from publications in print media, on image and sound carriers of any kind, in particular in the press, radio, cinema and television;
b) Disputes arising from banking and financial transactions;
c) Disputes arising from construction and architectural contracts as well as from engineering agreements insofar as they are connected to construction work;
d) Disputes arising from the professional activities of attorneys, patent attorneys, notaries, tax consultants, tax agents, auditors, and sworn accountants;
e) Disputes regarding claims arising from therapeutic treatments;
f) Disputes arising from commercial matters in the sense defined by section 95 of the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG);
g) Disputes regarding claims under freight, shipping, and storage transactions;
h) Disputes arising from relationships governed by insurance contracts;
i)Disputes in the fields of copyright and publishing law;
j)Disputes arising in the fields of communications and information technology;
k) Disputes allocated to the regional court (Landgericht, LG) regardless of the value of the matter in dispute.
(2) In the event of any doubts as to whether or not the prerequisites set out in subsection (1) have been met, the division shall decide by incontestable order. (3) The judge sitting alone shall submit the legal dispute to the civil division for it to decide whether or not it intends to assume the proceedings if:
1. The matter is characterised by special factual or legal difficulties,
2. The legal matter is of fundamental significance, or
3. This is petitioned by the parties in congruent declarations. The division shall assume the legal dispute wherever the prerequisites stipulated by the first sentence hereof in number 1 or 2 are fulfilled. It shall decide on this by handing down a corresponding court order. Any re-transfer to the judge sitting alone is ruled out. (4) Appellate remedies may not be based on a submission having been made or not made, nor may they be based on an assumption of the case or the failure to so assume a case.
Section 348a Obligatory judge sitting alone
(1) Where it is not established by section 348 (1) that a judge is responsible for sitting on a matter alone, the civil division shall, by handing down a corresponding order, charge one of its members to decide the case as a judge sitting alone, provided that:
1. The matter is not characterised by special factual or legal difficulties,
2. The legal matter is not of any fundamental significance, and
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3. Oral argument has not already been heard on the merits of the case before the civil division 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 of the civil division for it to decide whether or not it intends to assume the proceedings where:
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
2. This is petitioned by the parties in congruent declarations. The division shall assume the legal dispute in all cases in which the prerequisites stipulated by the first sentence hereof in number 1 are fulfilled. Upon having heard the parties, it shall rule on the matter by court order. Any re-transfer to the judge sitting alone is ruled out. (3) Appellate remedies may not be based on a transfer or submission having been made or not made, nor may they be based on an assumption of the case or the failure to so assume a case.
Section 349 Presiding judge of the division for commercial matters
(1) The presiding judge of the division for commercial matters is to promote the matter such that it can be dealt with and terminated in a hearing before the division. He may take evidence only insofar as it is to be assumed that the special technical competence of the honorary lay judges will not be decisive for the taking of evidence, and that the division will be able to properly evaluate the results obtained in taking evidence even without having a direct impression of its course. (2) The presiding judge shall decide:
1. On the referral of the legal dispute;
2. On objections concerning the admissibility of the complaint, insofar as oral argument is heard on it separately;
3. The suspension of the proceedings;
4. In the event of the legal action being withdrawn, of the claims asserted being waived or of the claim being acknowledged;
5. In the event of one party or of both the parties failing to comply with procedural rules;
6. On the costs of the legal dispute pursuant to section 91a;
7. In the proceedings on approval of assistance with court costs;
8. In proceedings on claims arising from a bill of exchange and on claims asserted concerning payment of a cheque;
9. On the type of security to be ordered;
10. On the temporary stay of compulsory enforcement;
11. On the value of the subject matter being litigated;
12. On costs, fees and expenditures. (3) Should the parties agree to so proceed, the presiding judge may also take the decision instead of the division in all other cases as well. (4) Sections 348 and 348a are not applicable.
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Section 350 Appellate remedies
The same rules shall apply to any contestation of the decisions handed down by a judge sitting alone (section 348 and section 348a), and of the presiding judge of the division for commercial matters (section 349), as apply to the contestation of the corresponding decisions taken by the division.
Sections 351 to 354 (repealed)
Title 5 General regulations on taking evidence
Section 355 Evidence to be taken directly
(1) Evidence shall be taken before the court hearing the case. Only in the cases determined in the present Code shall the taking of evidence be transferred to a member of the court hearing the case or to another court. (2) The court order instructing one or the other manner of taking evidence is not contestable.
Section 356 Period within which evidence must be produced
Should an impediment prevent evidence from being taken, and should it not be certain for how long this situation will continue, the court is to set a period by court order; once the deadline has expired without success, the evidence may be used only if, at the court’s discretion and conviction, this will not delay the proceedings.
Section 357 Attendance of parties
(1) The parties are permitted to attend the taking of evidence. (2) Should the taking of evidence be transferred to a member of the court hearing the case or to another court, the date of the hearing as determined by the court shall be communicated to the parties by simple letter, unless the court orders that such notice be served. Where it is sent by regular mail, notice shall be deemed to have been effected on the following business day wherever the residence of the party is situate in the local postal district, and in all other cases shall be deemed to have been effected on the second business day following its mailing, unless the party demonstrates in a satisfactory manner that it has not received the notice, or that it has only received it at a later point in time.
Section 357a (repealed)
Section 358 Necessity of issuing an order for evidence to be taken
Should the taking of evidence require separate proceedings, the court shall issue the corresponding instructions in an order for evidence to be taken.
Section 358a Order for evidence to be taken and taking of evidence prior to a hearing for oral
argument The court may issue an order for evidence also prior to the hearing for oral argument. Provided that the order contains one of the following instructions, the order may be carried out prior to the hearing for oral argument:
1. Evidence is to be taken before the judge correspondingly delegated or requested;
2. Information is to be procured from government bodies;
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3. The question regarding which evidence is to be taken is to be replied to in writing pursuant to section 377 (3);
4. Reports are to be prepared by experts;
5. Visual evidence is to be taken on site.
Section 359 Content of the order for evidence to be taken
The order for evidence to be taken shall:
1. Designate the facts at issue, regarding which evidence is to be taken;
2. Designate the evidence, naming the witnesses and experts to be examined or the party to be examined;
3. Designate the party that has taken recourse to the evidence.
Section 360 Modification of the order for evidence to be taken
No party may demand that, due to any earlier hearings, an order for evidence to be taken be modified prior to its being dealt with conclusively. However, the court may modify the order for evidence to be taken, doing so either upon corresponding application being made by a party or ex officio, insofar as the opponent agrees to this being done, or insofar as such modification concerns only the correction or amendment of the facts at issue set out in the order, or insofar as witnesses or experts other than those set out in the order are to be examined; the court may do so also without another hearing for oral argument being held. The judge correspondingly delegated or requested shall have the same authority. If at all possible, the parties are to be heard prior to such modification, and in all cases are to be notified of the modification without undue delay.
Section 361 Evidence taken by a delegated judge charged with a task
(1) Where a member of the court hearing the case is to take evidence, the presiding judge, in pronouncing the order for evidence to be taken, is to designate the judge so delegated and shall determine the hearing at which the evidence is to be taken. (2) Should the court have failed to determine a date for a hearing, the delegated judge shall determine it; where the delegated judge is prevented from performing the task with which he has been charged, the presiding judge shall charge a different member of the court with said task.
Section 362 Evidence taken by a requested judge
(1) Where another court is charged with taking evidence, the letter of request is to be issued by the presiding judge. (2) The requested judge shall send to the court registry of the court hearing the case an original copy of the records of the hearings concerning the taking of evidence; the court registry shall inform the parties to the dispute of its having received these records.
Section 363 Evidence taken abroad
(1) In cases in which evidence is to be taken abroad, the presiding judge is to file a request with the responsible public authority, asking it to so take the evidence. (2) Where it is possible to have a Consul of the Federal Republic of Germany take the evidence, the request letter is to be sent to same. (3) The stipulations set out in Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or
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commercial matters (OJEC number L 174 page 1) shall remain unaffected hereby. Sections 1072 and 1073 shall apply to the implementation.
Section 364 Cooperation and assistance by parties where evidence is taken abroad
(1) If a foreign public authority is requested to take evidence, the court may order the party tendering such evidence to prepare and send the request letter and to pursue the implementation of such request. (2) The court may limit itself to ordering the party tendering evidence to produce a public record or document as to the evidence taken, which record or document must be in compliance with the laws of the foreign state. (3) In both cases, the order for evidence to be taken is to determine a period within which the party tendering evidence is to deposit the said record or document with the court registry. Once this deadline has expired without success, the record or document may be used only if doing so will not delay the proceedings. (4) If possible, the party tendering evidence is to inform the opponent in such due time of the location and time at which evidence is to be taken that this will enable the opponent to suitably protect his interests under law. Where such notice has not been given, the court is to exercise its discretion in deciding whether – and if so, to which extent – the party tendering evidence is entitled to use the record of the hearing on the evidence.
Section 365 Relinquishment of jurisdiction by the judge correspondingly delegated or requested
Should, at a later time, grounds become apparent indicating that having a different court take the evidence would be appropriate to the matter at hand, the judge correspondingly delegated or requested is authorised to request that such court take the evidence. The parties are to be informed of the ruling correspondingly issued.
Section 366 Interlocutory proceedings
(1) If a dispute ensues in the course of taking evidence before a judge correspondingly delegated or requested, the outcome of which is essential for the taking of evidence to continue, and regarding which the judge is not entitled to hand down the decision, this matter shall be dealt with by the court hearing the case. (2) The hearing scheduled for oral argument regarding the interlocutory proceedings is to be determined ex officio and is to be made known to the parties.
Section 367 Failure of a party to appear
(1) Should a party fail to appear at the hearing at which evidence is to be taken, or should both parties so fail to appear, evidence nonetheless shall be taken insofar as circumstances allow. (2) Upon corresponding application being made, the court shall issue instructions for any retroactive taking of evidence, or any completion of the evidence taken, and shall do so prior to that hearing being closed subsequent to which the judgment is handed down, provided that this does not delay the proceedings or provided that the party can demonstrate in a satisfactory manner that, through no fault of its own, it was unable to appear at the earlier hearing, and, in the case of a petition having been filed for the evidence taken to be completed, that said party’s failure to appear has resulted in the taking of evidence being incomplete in significant aspects.
Section 368 New hearing for evidence to be taken
Should it be required to arrange for a new hearing to take evidence, or to continue such taking of evidence, such a hearing shall be determined ex officio even if the party tendering evidence, or both parties to the dispute, failed to appear at the earlier hearing.
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Section 369 Taking of evidence abroad
Where the taking of evidence as performed by a foreign public authority is in line with the laws applicable to the court hearing the case, no grounds for objection may be derived from the fact that this was done inadequately under the foreign laws.
Section 370 Continuation of the hearing for oral argument
(1) Insofar as the evidence is taken before the court hearing the case, the hearing at which the evidence is taken shall concurrently be determined to be the continuation of the hearing for oral argument. (2) The order instructing that evidence be taken by a judge correspondingly delegated or requested may concurrently determine the hearing at which oral argument is to continue before the court hearing the case. Where this has not been done, this hearing shall be determined ex officio once the taking of evidence has terminated, and the parties shall be informed of same.
Title 6 Evidence taken by visual inspection
Section 371 Evidence taken by visual inspection
(1) Evidence taken by visual inspection is offered by designating the object to be inspected visually and by citing the facts regarding which evidence is to be provided. If an electronic document is to serve as evidence, it shall be so offered as evidence by producing or transmitting the file. (2) Where the party tendering evidence alleges that the object is not in its possession, additional evidence shall be offered by filing the application with the court to set a period within which the object must be procured, or to deliver an order pursuant to section 144. Sections 422 to 432 shall apply mutatis mutandis. (3) Should a party frustrate the taking of visual evidence on site that it can reasonably be expected to tolerate, the court may deem the allegations made by the opponent regarding the nature of the object to have been proven.
Section 371a Evidentiary value of electronic documents
(1) The rules concerning the evidentiary value of private records and documents shall be applied mutatis mutandis to private electronic documents bearing a qualified electronic signature. The appearance of authenticity of a declaration available in electronic form, as obtained from reviewing it pursuant to the Electronic Signature Act (Signaturgesetz), can be cast into doubt only by facts giving rise to serious doubts as to the declaration having been made by the holder of the signature key. (2) Where an individual has registered securely for a “De-Mail” account that is assigned solely to that individual (section 4 (1), second sentence, of the Act on De-Mail (De-Mail Gesetz)), the appearance of authenticity attendant on an electronic message sent from this De-Mail account, as resulting from the verification of the sender authentication pursuant to section 5 (5) of the Act on De-Mail, will be called into question only by facts giving rise to serious doubts as to the message with that content having been sent by that person. (3) The rules concerning the evidentiary value of public records and documents shall be applied mutatis mutandis to electronic documents created, in accordance with the requirements as to form (public electronic documents), by a public authority within the purview of its official responsibilities, or by a person or entity vested with public trust within the sphere of business assigned to him or it. Where the document bears a qualified electronic signature of the public authority that has created it, or of the person or entity vested with public trust, section 437 shall apply mutatis mutandis. The same shall apply if an
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accredited service provider furnishes the document, on behalf of the public authority that has created such document, or on behalf of the person or entity vested with public trust that has created such document, with his qualified electronic signature pursuant to section 5 (5) of the Act on De-Mail and the sender authentication identifies the public authority that has created such document, or the person or entity vested with public trust, as the user of the De-Mail account, or the person or entity vested with public trust.
Section 371b Evidentiary value of scanned public records or documents
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:
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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
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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.
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(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.
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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.
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(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.
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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.
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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.
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(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
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(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.
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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.
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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.
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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
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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.
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(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
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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
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(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”,
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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;
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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
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(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.
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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.
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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.
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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
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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,
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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,
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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
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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:
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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;
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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
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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.
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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:
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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
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(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.
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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
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(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
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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
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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)).
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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.
Section 573 Reminder as a legal remedy
(1) A petition may be filed for a decision to be issued by the court against the decisions taken by the judge correspondingly delegated or requested, or against those taken by the records clerk of the court registry, within a statutory period of two (2) weeks (reminder). The reminder is to be filed in writing or is to be recorded with the registry for the files of the court. Section 569 (1) first and second sentences, subsection (2) and sections 570 and 572 shall apply mutatis mutandis. (2) A complaint subject to a time limit may be lodged against the decision of the court delivered on the reminder in the proceedings before the court of first instance. (3) The rule set out in subsection (1) shall also apply to the higher regional courts (Oberlandesgerichte, OLG) and the Federal Court of Justice (Bundesgerichtshof, BGH).
Title 2 Complaint on points of law
Section 574 Complaint on points of law; cross appeal under a complaint on points of law
(1) A complaint on points of law is an available remedy against a court order if:
1. This has been expressly determined in the law; or
2. The court hearing the complaint, the court of appeal, or the higher regional court (Oberlandesgericht, OLG) has granted leave to do so in its order in the proceedings before the court of first instance.
Section 542 (2) shall apply mutatis mutandis. (2) In the cases provided for by subsection (1) number 1, the complaint on points of law shall be admissible 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 requires a decision to be taken by the court hearing the complaint on points of law.
(3) In the cases provided for by subsection (1) number 2, leave to file a complaint on points of law shall be granted where the prerequisites of subsection (2) have been met. The court hearing the complaint on points of law shall be bound by such leave granted. (4) The respondent of the complaint on points of law may join the complaint on points of law within a statutory period of one (1) month following service of the brief setting out the reasoning for the complaint on points of law by submitting the notice of cross appeal under a complaint on points of law with the court hearing the complaint on points of law, and may do
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so also in those cases in which it has waived a complaint on points of law, in which the period within which such a complaint on points of law must be filed has lapsed or in which no leave has been granted to file a complaint on points of law. The reasoning for filing a cross appeal under a complaint is to be provided in the notice of cross appeal. The joinder shall cease to be effective where the complaint on points of law is retracted or overruled as inadmissible.
Section 575 Time limit, formal requirements, and reasoning of the complaint on points of law
(1) The complaint on points of law is to be filed within a statutory period of one (1) month following service of the order by submitting a notice on appeal under a complaint with the court hearing the complaint on points of law. The notice or brief regarding the complaint on points of law must include:
1. The designation of the decision against which the complaint on points of law is directed, and
2. The declaration that a complaint on points of law was filed against this decision. An execution or certified copy of the contested decision is to be enclosed with the notice or brief regarding the complaint on points of law. (2) Unless the notice regarding the complaint on points of law sets out its reasons, the grounds for filing the complaint on points of law are to be provided within a period of one (1) month. The period shall begin running upon service of the contested decision. Section 551 (2) fifth and sixth sentences hereof shall apply mutatis mutandis. (3) The reasoning of the complaint on points of law must include:
1. The declaration as to the extent to which the decision of the court hearing the complaint or of the court of appeal is contested and its reversal is petitioned (petitions under the complaint on points of law);
2. In the cases provided for by section 574 (1) number 1, a presentation of the prerequisites for leave to be granted as set out in section 574 (2);
3. The grounds for the complaint 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 complaint on points of law is based on the allegation that the law was violated with reference to the proceedings: the designation of the facts that reflect this irregularity.
(4) The general regulations governing preparatory written pleadings are to be applied also to the notice regarding the complaint on points of law and the brief setting out the reasoning for the complaint. The notice regarding the complaint on points of law and the brief setting out the reasoning for the complaint are to be served on the opponent party. (5) Sections 541 and 570 subsections (1) and (3) shall apply mutatis mutandis.
Section 576 Grounds for filing the complaint on points of law
(1) The complaint on points of law may only be based on the fact that the decision is based on a violation of federal law or of a rule the territorial scope of which extends beyond the judicial district of a higher regional court (Oberlandesgericht, OLG). (2) The complaint 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. (3) Sections 546, 547, 556 and 560 shall apply mutatis mutandis.
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Section 577 Review of the complaint on points of law and decision
(1) The court hearing the complaint on points of law is to review ex officio whether the complaint on points of law as such is an available remedy and whether or not it has been filed in keeping with statutory requirements as to form and time and whether reasoning was provided. Should one of these requirements not have been met, the complaint on points of law is to be overruled as inadmissible. (2) Solely the petitions filed by the parties shall be subject to review by the court hearing the complaint on points of law. The court hearing the complaint on points of law is not bound to the grounds being asserted in the complaint on points of law. The decision contested in the proceedings may only be reviewed for irregularities in the proceedings that are not to be taken into account ex officio wherever such irregularities have been objected to pursuant to section 575 (3) and section 574 (4), second sentence, hereof. Section 559 shall apply mutatis mutandis. (3) In cases in which the reasoning provided for the contested decision does indicate that the law has been violated, but the decision itself appears to be correct based on other grounds, leave to file a complaint on points of law is to be denied. (4) Where the complaint on points of law is deemed justified, the contested decision is to be reversed and the matter is to be referred back for a new decision to be taken. Section 562 (2) shall apply mutatis mutandis. The matter may be referred to another formation of the court that has delivered the contested decision. The court to which the matter is referred is to base its decision on the legal assessment on which the reversal of the judgment is based. (5) The court hearing the complaint on points of law is to decide on the matter as such if the decision is reversed only for 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. Section 563 (4) shall apply mutatis mutandis. (6) The decision as to the complaint on points of law shall be delivered by court order. Section 564 shall apply mutatis mutandis. The requirement to provide reasoning may be forgone in all other regards if this would not be suited to contribute to clearing up fundamental legal issues, to the further development of the law, or to ensuring uniform adjudication.
Book 4 Reopening of proceedings
Section 578 Types of reopening proceedings
(1) Proceedings terminated by a final judgment that has become res judicata may be reopened by an action for annulment and by an action for retrial of the case. (2) Where both actions are brought by one and the same party, or by different parties, the hearing and decision as to the action for retrial of the case is to be suspended until the decision on the action for annulment has become final and binding.
Section 579 Action for annulment
(1) An action for annulment may be brought:
1. Where the composition of the court of decision was not compliant with the relevant provisions;
2. Where a judge was involved in the decision who, by law, was prohibited from holding judicial office, unless this impediment had been asserted by a motion to recuse a judge or by filing appellate remedies without meeting with success;
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3. Where 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. Where 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.
(2) No complaint may be filed in the cases set out under numbers 1 and 3 if it was possible to enforce such annulment by appellate remedies.
Section 580 Action for retrial of the case
An action for retrial of the case may be brought:
1. Where the opponent, by swearing an oath regarding his testimony, on which latter the judgment had been based, has intentionally or negligently committed perjury;
2. Where a record or document on which the judgment was based had been prepared based on misrepresentations of fact or had been falsified;
3. Where, in a testimony or report on which the judgment was based, the witness or experts violated their obligation to tell the truth, such violation being liable to prosecution;
4. Where the judgment was obtained by the representative of the party or its opponent or the opponent’s representative by a criminal offence committed in connection with the legal dispute;
5. Where a judge contributed to the judgment who, in connection with the legal dispute, violated his official duties vis-à-vis the party, such violation being liable to prosecution;
6. Where judgment by a court of general jurisdiction, by a former special court, or by an administrative court, on which the judgment had been based, is reversed by another judgment that has entered into force;
7. Where the party
a) Finds, or is put in the position to avail itself of, a judgment that was handed down in the same matter and that has become final and binding earlier, or where it
b) Finds, or is put in the position to avail itself of, another record or document that would have resulted in a decision more favourable to that party’s interests;
8. Where the European Court of Human Rights has established that the European Convention for the Protection of Human Rights and Fundamental Freedoms or its protocols have been violated, and where the judgment is based on this violation.
Section 581 Special prerequisites to be met by an action for retrial of the case
(1) In the cases set out in the above section in numbers 1 to 5, an action for retrial of the case may be brought only if a final and binding conviction has been issued as a result of the criminal offence, or if it is not possible to initiate or implement criminal proceedings for other reasons than the lack of evidence. (2) Evidence of the facts justifying the action for retrial of the case cannot be provided by examination of a party.
Section 582 Auxiliary nature of an action for retrial of the case
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An action for retrial of the case may admissibly be brought only if the party, through no fault of its own, was unable to assert the cause for retrial of the case in the earlier proceedings, in particular by filing a protest or an appeal, or by joining an appeal.
Section 583 Prior decisions
The actions for annulment or retrial may assert causes for rescission that affect a decision delivered by the court of the same or lower instance prior to the judgment being contested, provided that the contested judgment is based on this decision.
Section 584 Exclusive jurisdiction for actions for annulment and actions for retrial of the case
(1) For these actions, exclusive jurisdiction shall lie with: the court entering the judgment in the proceedings before the court of first instance; the court of appeal if the judgment contested, or even only one of several judgments contested, was delivered by the court of appeal, or if a judgment delivered by a court hearing the appeal on points of law is contested based on the stipulations of section 580 numbers 1 to 3, 6, and 7; the court hearing the appeal on points of law if a judgment delivered by a court hearing the appeal on points of law is contested based on the stipulations of sections 579, 580 numbers 4 and 5. (2) Where the actions are directed against a writ of execution, they shall be brought exclusively with the court that would have been the forum for the litigation as such.
Section 585 General procedural rules
Unless otherwise provided for by the present Code, the general regulations shall apply mutatis mutandis to bringing proceedings in the court and to the further proceedings.
Section 586 Period for filing an action
(1) The actions are to be filed prior to expiry of the statutory period of one (1) month. (2) The period shall commence running on that day on which the party has become aware of the cause for rescission, but not prior to the judgment having become final and binding. Once five (5) years have lapsed, counting from the date on which the judgment has become res judicata, actions shall no longer be an available remedy. (3) The stipulations of the above subsection are not to be applied to an action for annulment due to lack of representation; the period for bringing an action shall commence on the day on which the judgment has been served on the party and, where the party lacks the capacity to sue and be sued, on which it has been served on its legal representative. (4) The rule set out in subsection (2), second sentence, is not to be applied to any actions for retrial of a case as provided for by section 580 number 8.
Section 587 Statement of claim
The complaint must set out the reference number and designation of the judgment against which the action for annulment or action for retrial of the case is directed, as well as the declaration as to which of these actions are being brought.
Section 588 Content of the statement of claim
(1) As a preparatory written pleading, the complaint is to set out:
1. The designation of the cause for rescission;
2. The evidence for the facts forming the cause and showing that the statutory period has been adhered to;
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3. The declaration as to the extent to which the remediation of the contested judgment is being sought, and which other decision in the main action is being petitioned.
(2) The original versions or copies of the records or documents on which an action for retrial of the case is based are to be enclosed with the written pleading by which the action is brought. Should the records or documents not be at hand to the plaintiff, he is to declare which petition he intends to file for the procurement of such records or documents.
Section 589 Review of admissibility
(1) The court is to review ex officio whether the complaint is admissible as such and whether it has been brought in keeping with statutory requirements as to form and time. Should one of these requirements not have been met, the complaint shall be overruled as inadmissible. (2) The facts showing that the complaint is being brought prior to the statutory period having lapsed are to be demonstrated to the satisfaction of the court.
Section 590 New hearing
(1) Insofar as it is affected by the cause for rescission, the main action shall be heard once again. (2) The court may direct that the cause for reopening the proceedings, and the admissibility of so reopening them, be heard and decided on prior to the hearing regarding the main action. In such event, the hearing regarding the main action is to be deemed a continuation of the hearing regarding the cause for the reopening of the proceedings and the admissibility of so reopening them. (3) The court hearing the appeal on points of law that is responsible for the actions filed is to deal with and conclude the hearing at which the cause for reopening the proceedings and the admissibility of so reopening them are addressed, and shall do so also in those cases in which such conclusion of the hearing depends on the determination and legal appraisal of disputed facts.
Section 591 Appellate remedies
Appellate remedies are admissible insofar as they may at all be filed against the decisions delivered by the courts dealing with the actions.
Book 5 Proceedings on claims arising from a deed, in which solely documentary evidence is
submitted, and proceedings on claims arising from a bill of exchange
Section 592 Admissibility
A claim that is brought regarding the payment of a specific amount of money, or the performance of a determined amount of other fungible things that in business dealings are customarily specified by number, measure or weight, or the performance of securities, may be asserted in proceedings in which plaintiffs rely entirely on documentary evidence, provided that the entirety of all facts required to justify the claim can be proven by records or documents. A claim arising from a mortgage, a charge on land, an annuity charge on land, or a maritime mortgage shall be deemed to be a claim that is brought regarding the payment of an amount of money.
Section 593 Content of the statement of claim; records and documents
(1) The statement of claim must declare that the action is being brought in proceedings in which plaintiffs rely entirely on documentary evidence. (2) Copies of the records or documents are to be enclosed with the statement of claim or a preparatory written pleading. In the latter case, the period lapsing between the service of the
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written pleading and the hearing scheduled for oral argument must be equal to the time for entering an appearance.
Section 594 (repealed)
Section 595 No countercharges; evidence
(1) No countercharges may admissibly be brought. (2) Solely records or documents and the petition for examination of a party shall be admissible as evidence regarding the authenticity or falsity of a record or document, as well as other facts besides those mentioned in section 592. (3) Documentary evidence may be provided only by producing the records or documents.
Section 596 Desisting from proceedings in which plaintiffs rely entirely on documentary evidence
Without this requiring the defendant’s consent, the plaintiff may desist, until the close of the hearing for oral argument, from pursuing proceedings in which plaintiffs rely entirely on documentary evidence, doing so such that the legal dispute continues to be pending before the courts of general jurisdiction.
Section 597 Dismissal of the action
(1) Insofar as the claim being asserted in the action appears to be without justification, either in and of itself or as the result of an objection lodged by the defendant, the plaintiff’s claim is to be dismissed. (2) Wherever proceedings in which plaintiffs rely entirely on documentary evidence are not an available remedy, and in particular where evidence has not been provided in line with the plaintiff’s obligation to submit the evidence admissible in proceedings in which plaintiffs rely entirely on documentary evidence, or where such documentary evidence has not been provided completely, the action shall be dismissed as not being an available remedy in the type of proceedings selected, even if the defendant has failed to make an appearance in the hearing for oral argument or even if the defendant has opposed the complaint based merely on objections that are without justification in legal terms or that are not an available remedy in proceedings in which plaintiffs rely entirely on documentary evidence.
Section 598 Refusal to admit objections
Objections lodged by the defendant are to be dismissed as not being an available remedy in proceedings in which plaintiffs rely entirely on documentary evidence should the defendant have failed to provide the evidence in keeping with its obligations, by submitting the evidence admissible in proceedings in which plaintiffs rely entirely on documentary evidence, or where such documentary evidence has not been provided completely.
Section 599 Judgment subject to a reservation of rights
(1) The defendant opposing the claim being brought is to be granted the right to exercise his rights in all cases in which sentence is passed upon him. (2) If the judgment does not set out a reservation of rights, an amendment of the judgment pursuant to the stipulations of section 321 may be applied for. (3) The judgment delivered subject to a reservation of rights is to be regarded as a final judgment for the purposes of appellate remedies and compulsory enforcement.
Section 600 Subsequent proceedings
(1) Where the defendant is granted the right to exercise his rights, the legal dispute shall remain pending before the courts of general jurisdiction.
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(2) To the extent the plaintiff’s claim proves to have been unfounded in these proceedings, the stipulations of section 302 (4) second to fourth sentences hereof shall apply. (3) Should a party fail to make an appearance in these proceedings, the rules regarding default judgments shall apply mutatis mutandis.
Section 601 (repealed)
Section 602 Proceedings on claims arising from a bill of exchange
If claims are asserted, in proceedings in which plaintiffs rely entirely on documentary evidence, that are based on bills of exchange in the sense as defined by the Act on Bills of Exchange and Promissory Notes (Wechselgesetz) (proceedings on claims arising from a bill of exchange), the special rules set out hereinbelow are to be applied.
Section 603 Venue
(1) An action arising from a bill of exchange may be filed both with the court of the place of payment and with the court in the jurisdiction of which the defendant has his general venue. (2) Should several parties liable on a bill of exchange be jointly sued, any court shall have jurisdiction, besides the court of the place of payment, in the jurisdiction of which one of the defendants has his general venue.
Section 604 Content of the statement of claim; summons period
(1) The statement of claim must set out the declaration that the complaint is being filed in proceedings on claims arising from a bill of exchange. (2) The period indicated in the summons as the period lapsing between service of same and the date of the hearing (summons periods) shall amount to at least twenty-four (24) hours where the summons is served at the location at which the court hearing the case has its seat. In proceedings in which the parties must be represented by counsel, the summons period shall amount to at least three (3) days if the summons is served at a different location situate in the judicial district of the court hearing the case, or of which a part is located in the court’s judicial district. (3) Before the courts of higher instance, the summons period shall amount to at least twenty- four (24) hours if the notice or brief on appeal, or the notice or brief on appeal on points of law, or the summons is served at the location at which the court of higher instance has its seat. Where service is effected at another location that is situate, as a whole or in part, in the district of the regional court (Landgericht) in which the court of higher instance has its seat, the summons period shall amount to at least three (3) days; it shall amount to at least one (1) week if service is effected elsewhere in Germany.
Section 605 Regulations governing the submission of evidence
(1) Unless protest must be lodged in due time in order to preserve the claim under the bill of exchange, the petition for examination of a party is admissible as evidence regarding the production of a bill of exchange. (2) For an ancillary claim to be considered, it suffices for it to have been demonstrated to the satisfaction of the court.
Section 605a Proceedings on claims asserted concerning the payment of a cheque
Where, in proceedings in which plaintiffs rely entirely on documentary evidence, claims are asserted that are based on cheques in the sense as defined by the Law on Cheques (Scheckgesetz) (proceedings on claims asserted concerning the payment of a cheque), sections 602 to 605 shall apply mutatis mutandis.
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Sections 606 to 687 (repealed)
Book 7 Summary proceedings for a payment order
Section 688 Admissibility
(1) Upon corresponding application being made by the claimant regarding a claim concerning the payment of a specific amount of money in Euros, a payment order is to be issued. (2) No summary proceedings for a payment order may be brought:
1. For claims that an entrepreneur has under an agreement pursuant to sections 491 to 509 of the Civil Code (Bürgerliches Gesetzbuch, BGB), if the effective annual rate of interest to be provided for in accordance with section 492 (2) of the Civil Code is in excess, by more than twelve (12) percentage points, of the base rate of interest, pursuant to section 247 of the Civil Code, applicable at the time the agreement is concluded;
2. Where the assertion of the claim is dependent on consideration, performance of which is as yet outstanding;
3. Where the payment order would have to be served by publication of a notice. (3) Should the payment order have to be served abroad, the summary proceedings for a payment order may be brought only to the extent provided for by the Act on the Recognition and Execution of Judgments by Way of Enforcement (Anerkennungs- and Vollstreckungsausführungsgesetz, AVAG) of 19 February 2001 (published in Federal Law Gazette (Bundesgesetzblatt, BGBl) I page 288).
(4) The stipulations of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (Official Journal L 399 page 1) shall remain unaffected hereby. Sections 1087 to 1096 shall apply regarding its implementation.
Section 689 Jurisdiction; automatic processing
(1) The summary proceedings for a payment order are implemented by the local courts (Amtsgerichte). They may admissibly be implemented using automatic processing systems. Where this processing method is used, petitions received are to have been dealt with at the latest on the working day following the day of their receipt. The records may be kept as electronic files (section 298a).
(2) That local court (Amtsgericht, AG) shall have exclusive jurisdiction with which the claimant has his general venue. Should claimants have no general venue in Germany, the local court of Wedding in Berlin shall have exclusive jurisdiction. The first and second sentences hereof shall also apply if other rules determine another exclusive place of jurisdiction.
(3) Should this serve the prompter and more effective processing of such orders, the Land governments are authorised to assign summary proceedings for a payment order to a local court acting for the districts of several local courts, doing so by statutory instrument. The assignment may be limited to those summary proceedings for a payment order that are processed automatically. The Land governments may confer the authorisation by statutory instrument upon the Land departments of justice. Several Länder may agree on the jurisdiction of a local court across the boundaries of their respective territories.
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Section 690 Petition for a payment order
(1) The petition must be for the issuance of a payment order and must set out:
1. The designation of the parties, their legal representatives, and their attorneys of record;
2. The designation of the court with which the petition was filed;
3. The designation of the claim, with the performance demanded being specified exactly; the principal claims and ancillary claims are to be designated separately and individually, claims under agreements pursuant to sections 491 to 509 of the Civil Code (Bürgerliches Gesetzbuch, BGB) are to be designated also by citing the date on which they were concluded and the effective annual rate of interest to be provided for in accordance with section 492 (2) of the Civil Code;
4. The declaration that the claim is not dependent on consideration, or that such consideration has been provided;
5. The designation of the court having jurisdiction for legal proceedings determining whether or not a claim is justified.
(2) The petition must be signed by hand. (3) The petition may be transmitted in a format that is merely machine-readable if the court deems this format to be suited for its automatic processing systems. Where the petition is filed by an attorney or a person registered pursuant to section 10 (1), first sentence, number 1 of the Legal Services Act (Rechtsdienstleistungsgesetz, RDG), exclusively this form of filing a petition shall be admissible. The petition need not be signed by hand if it is otherwise warranted that the petition is not being transmitted without this having been intended by the claimant.
Section 691 Dismissal of the petition for a payment order
(1) The petition for a payment order shall be dismissed:
1. If it does not comply with the stipulations of sections 688, 689, 690, 703c (2);
2. If the payment order cannot be issued for reasons given in only a part of the claim.
Prior to such dismissal, the claimant is to be heard. (2) If service of the payment order is to be made in order to comply with a deadline, or to have the period of limitations begin anew, or to have it extended pursuant to section 204 of the Civil Code (Bürgerliches Gesetzbuch, BGB), the receipt or the filing of the corresponding petition for issuance of the payment order shall have this effect provided an action is brought within one (1) month of the day on which the dismissal of the petition has been served and this is served in the near future. (3) A complaint subject to a time limit may be lodged against the dismissal if the petition was transmitted in a form that is merely machine-readable and was dismissed, with the court citing as its reason for the dismissal that it did not deem this format to be suited for its automatic processing systems. In all other regards, decisions delivered pursuant to subsection (1) are incontestable.
Section 692 Payment order
(1) The payment order shall set out:
1. The requirements of the petition as designated in section 690 (1) numbers 1 to 5;
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2. The notice as to the court not having reviewed whether or not the claimant is entitled to the claim being enforced;
3. The demand to settle the account for the debt claimed, along with the interest demanded thereon and the amount of the costs designated, and to do so within two (2) weeks of the payment order having been served, insofar as the claim being asserted is deemed justified, or to communicate to the court whether the claim being asserted is opposed and in which scope this is being done;
4. The notice that a writ of execution may be issued that corresponds to the payment order, based on which the claimant may pursue compulsory enforcement of his claim should the respondent under the claim not have lodged an opposition prior to the time limit having lapsed;
5. In the event that forms have been introduced: the notice that any opposition shall be lodged using a form of the type enclosed, which is available from any local court (Amtsgericht, AG) and can be completed there;
6. In the event of an opposition being lodged: advance notice specifying the court that is assigned to the matter, with the note that this court reserves the right to review whether or not it has jurisdiction.
(2) A corresponding stamp placed on the document or an electronic signature shall be deemed compliant with this rule instead of a signature by hand.
Section 693 Service of the payment order
(1) The payment order is served on the respondent under the claim. (2) The court registry shall inform the claimant of the fact that the payment order has been served.
Section 694 Lodging an opposition against the payment order
(1) The respondent under the claim may lodge an opposition in writing against a claim, or a part thereof, with the court that has delivered the payment order for as long as no writ of execution has been ordered. (2) An opposition lodged late shall be treated as a protest. This shall be communicated to the respondent under the claim who has lodged the opposition.
Section 695 Notice of opposition; copies
The court is to inform the claimant of the opposition and of the point in time at which it was lodged. Where the summary proceedings for a payment order are not processed automatically, the respondent under the claim shall submit the required number of copies along with the opposition.
Section 696 Proceedings upon an opposition having been lodged
(1) If an opposition is lodged in due time, and if a party applies for legal proceedings to be implemented that are to determine whether or not a claim is justified, the court that delivered the payment order will assign the legal dispute ex officio to the court that has been designated in the payment order pursuant to section 692 (1) number 1, provided that the parties to the dispute concur in requesting that the matter be so assigned to a different court. The petition may be included in the petition for issuance of the payment order. The assignment of the matter to a different court shall be communicated to the parties; it is not contestable. Upon the court files being received by the court to which the legal dispute has been assigned, the legal dispute shall be deemed to be pending with that court. Section 281 (3), first sentence, hereof shall apply mutatis mutandis.
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(2) Should the summary proceedings for a payment order have been processed automatically, a hard-copy printout of the files prepared automatically shall take the stead of the files unless the files are transmitted electronically. The rules regarding the evidentiary value of public records and documents shall apply mutatis mutandis to this printout. Section 298 shall not apply. (3) The dispute shall be deemed to have become pending upon the payment order having been served, provided that the dispute was assigned to another court in due time after the opposition was lodged. (4) The petition for the implementation of the legal proceedings determining whether or not a claim is justified may be withdrawn until the time at which the respondent is to be first heard on the merits of the case. Such withdrawal may be recorded with the registry for the files of the court. Upon the petition so being withdrawn, the dispute is to be regarded as not being pending. (5) The court to which the legal dispute has been assigned is not bound thereby in terms of its jurisdiction.
Section 697 Initiation of litigation
(1) The court registry of the court to which the dispute was transferred is to direct without undue delay that the claimant provide the reasons on which he is basing his claim within two (2) weeks in a form corresponding to the statement of claim. Section 270 second sentence shall apply mutatis mutandis. (2) Upon receipt of the brief substantiating the claim, the ensuing procedure shall correspond to that pursued upon receipt of an action. A time limit may also be set for the submission of a written statement of defence in the preliminary proceedings conducted in writing pursuant to section 276, such period commencing on the date on which the brief substantiating the claim is served. (3) Where the brief substantiating the claim is not received by the court in due time, and until it is received by the court, a hearing for oral argument shall be scheduled only upon a corresponding application being made by the respondent under the claim. In determining the date of a hearing by the court, the presiding judge shall set a time limit within which the claimant is to substantiate his claim; section 296 subsections (1) and (4) shall apply mutatis mutandis. (4) The respondent under the claim may retract his opposition until the time at which the respondent is to be first heard on the merits of the case, but may not do so after a default judgment has been delivered against him. The fact that the opposition has been retracted may be recorded with the registry for the files of the court. (5) In creating a judgment in the abridged form pursuant to section 313b (2), section 317 (5), the payment order may take the stead of the statement of claim. If the summary proceedings for a payment order have been processed automatically, the statement of claim shall be replaced by the hard-copy printout of the file.
Section 698 Transfer of the proceedings within the same court
The rules governing the transfer of proceedings shall apply mutatis mutandis in the event that the summary proceedings for a payment order and the legal proceedings determining whether or not a claim is justified are being pursued within one and the same court.
Section 699 Writ of execution
(1) Upon a corresponding petition being filed, the court shall deliver a writ of execution based on the payment order unless the respondent under the claim has lodged an opposition in due time. The petition may not be filed prior to expiry of the period for lodging an opposition; it is to set out the declaration as to whether or not any payments have been made as a result of the payment order and if so, which these were; section 690 (3) first and third sentences
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shall apply mutatis mutandis. Should the legal dispute have already been transferred to another court, this court shall deliver the writ of execution. (2) Insofar as the summary proceedings for a payment order are not processed automatically, the writ of execution may be set out on the payment order. (3) The writ of execution shall include the costs of the proceedings incurred thus far. The claimant needs to compute the costs only if the summary proceedings for a payment order are not processed automatically; in all other cases the information required for automatic processing shall suffice. (4) The writ of execution shall be served ex officio on the respondent under the claim unless the claimant has applied that it be transmitted to him for service on the respondent in keeping with the principle of party initiative in proceedings. In these cases, the writ of execution is transmitted to the claimant for him to perform service, and the court registry shall not effect such service. Should the court responsible for the summary proceedings for a payment order permit service to be effected by publication, the notification pursuant to section 186 (2) second and third sentences shall be hung on the court’s bulletin board or published in the electronic information system of the court designated in the payment order pursuant to section 692 (1) number 1. (5) The instruction pursuant to section 232 shall be communicated to the respondent in writing together with the writ of execution when the same is served on the respondent.
Section 700 Protest against the writ of execution
(1) The writ of execution is equivalent to a default judgment declared provisionally enforceable. (2) The dispute is deemed to have become pending upon service of the payment order. (3) Should a protest be filed, the court delivering the writ of execution shall transfer the legal dispute ex officio to that court that has been designated in the payment order pursuant to section 692 (1) number 1, and where the parties to the dispute concur in requesting the transfer to another court, it shall transfer the legal dispute to that court. Section 696 (1) third to fifth sentences, subsections (2) and (5), section 697 subsections (1) and (4), section 698 shall apply mutatis mutandis. Section 340 (3) shall not be applied. (4) Upon receipt of the brief substantiating the claim, the ensuing procedure shall correspond to that pursued upon receipt of an action. Once the brief substantiating the claim is received, the ensuing procedure shall be as in the case of a statement of claim being received, unless the protest is overruled as being inadmissible. Section 276 (1) first and third sentences and subsection (2) shall not be applied. (5) Should the brief substantiating the claim not be received within the period set by the court registry, and should the protest not be overruled as being inadmissible, the presiding judge shall schedule a hearing without undue delay; section 697 (3), second sentence, shall apply mutatis mutandis. (6) Pursuant to section 345, the protest may be overruled only if the prerequisites for a default judgment to be handed down as set out in section 331 subsections (1) and (2) first clause of the sentence have been met; insofar as these prerequisites have not been met, the writ of execution shall be repealed.
Section 701 Payment order ceases to have effect
Where no opposition has been lodged, and where the claimant has not petitioned a writ of execution to be issued within a period of six (6) months beginning on the day the payment order is served, the payment order shall cease to be effective. The same shall apply to the case in which a petition for the writ of execution has been filed in due time, but the petition has been dismissed.
Section 702 Form of petitions and declarations
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(1) In summary proceedings for a payment order, the petitions and declarations may be filed with the records clerk of the court registry. Insofar as forms have been introduced, they shall be completed; the records clerk will note that he has recorded the petition or the declaration, providing the name of the court and the date on which he did so. If forms have not been introduced, it is not necessary to prepare a record of a petition for the issuance of a payment order or of a writ of execution with the court responsible for the summary proceedings for a payment order. (2) The petition for issuance of a payment order or of a writ of execution is not communicated to the respondent under the claim.
Section 703 No proof of the power of attorney
It is not necessary to provide proof of a power of attorney having been granted in summary proceedings for a payment order. Anyone filing a petition or a legal remedy as an attorney- in-fact is to assure the court that he has been duly authorised.
Section 703a Summary proceedings for a payment order under a deed, a bill of exchange, or a
cheque (1) Should the petition by the claimant seek to obtain the issuance of a court order to pay debts under a deed, a bill of exchange, or a cheque, the payment order is designated as a court order to pay debts under a deed, a bill of exchange, or a cheque. (2) The following special rules shall apply to summary proceedings for a payment order under a deed, a bill of exchange, or a cheque:
1. The designation as court order to pay debts under a deed, a bill of exchange or a cheque shall have the effect of the dispute becoming pending, if an opposition is lodged in due time, in the proceedings on claims arising from a deed, from a bill of exchange, or on claims asserted concerning the payment of a cheque;
2. The records or documents shall be designated in the petition for issuance of the payment order and in the payment order; where the matter is to be transferred to the court hearing the dispute, the original versions or copies of the records or documents must be enclosed with the brief substantiating the claim;
3. In summary proceedings for a payment order, the question of whether or not the type of proceedings is an available remedy is not to be reviewed;
4. If the opposition is limited to the petition that the defendant be granted the right to exercise his rights, the writ of execution is to be delivered subject to this reservation. The rule set out in section 600 shall apply mutatis mutandis to the further procedure.
Section 703b Special regulations for automatic processing
(1) In the event of automatic processing systems being used, orders, rulings, execution copies, and court certificates of enforceability will be furnished with the court seal; no signature is required. (2) The Federal Minister of Justice is authorised to provide for the course of proceedings such provision being subject to approval by the Bundesrat and being made by statutory instrument, insofar as this is required to ensure uniform automatic processing of the summary proceedings for a payment order (progress schedule for the proceedings).
Section 703c Forms; introduction of automatic processing
(1) The Federal Minister of Justice is authorised to introduce forms in the interests of simplifying the summary proceedings for a payment order and in order to protect the party
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being laid claim to, such forms being subject to approval by the Bundesrat and being made by statutory instrument. Different forms may be introduced for:
1. Summary proceedings for a payment order performed by courts using automatic processing systems;
2. Summary proceedings for a payment order performed by courts that do not use automatic processing systems;
3. Summary proceedings for a payment order in which the payment order is to be served abroad;
4. Summary proceedings for a payment order in which the payment order is to be served in accordance with Article 32 of the Supplementary Agreement amending the NATO Status of Forces Agreement of 3 August 1959 (published in the Federal Law Gazette (Bundesgesetzblatt, BGBl.) 1961 II page 1183, citation on page 1218).
(2) Insofar as forms have been introduced pursuant to subsection (1) for petitions and declarations filed by the parties, the parties to the dispute must use them. (3) The Land governments shall determine the point in time, by statutory instrument, at which the automatic processing system for the summary proceedings for a payment order is to be introduced at any given local court (Amtsgericht, AG); they may confer the authorisation upon the Land departments of justice by statutory instrument.
Section 703d Rules where respondents have no general venue in Germany
(1) If the respondent has no general venue in Germany, the special rules set out hereinbelow shall apply. (2) That local court (Amtsgericht, AG) shall have jurisdiction for the summary proceedings for a payment order that would be the forum for the legal proceedings determining whether or not a claim is justified if the local courts had unlimited competence ratione materiae in the proceedings before the court of first instance. Section 689 (3) shall apply mutatis mutandis.
Book 8 Compulsory enforcement
Chapter 1 General regulations
Section 704 Enforceable final judgments
Compulsory enforcement may be pursued based on final judgments that have become final and binding, or that have been declared provisionally enforceable.
Section 705 Formal legal validity
Judgments shall not attain legal validity prior to expiry of the period determined for the lodgment of the admissible legal remedy or of the admissible protest. The legal validity shall be suspended in all cases in which the legal remedy or the protest is lodged in due time.
Section 706 Certificate as to a judgment having attained legal force and certificate as to the
statutory period (1) Certifications that judgments have become unappealable are to be issued by the registry of the court of first instance based on the court records of the dispute and, for as long as the legal dispute is pending at a higher level of jurisdiction, they are to be issued by the registry of the court of that instance.
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(2) To the extent the issuance of the certification depends on no legal remedy having been lodged against the judgment, the registry of the court of first instance shall procure, from the registry of the court having jurisdiction for the legal remedy, a notice in text form (a readable statement that is permanently valid without a signature having been applied) that until the expiry of the statutory period, no notice or brief regarding a legal remedy had been lodged. The registry of the court hearing the appeal on points of law need not communicate that no petition for leave to be granted to file an appeal on points of law pursuant to section 566 has been filed.
Section 707 Temporary stay of compulsory enforcement
(1) If a petition is filed for the restoration of the status quo ante or for proceedings to be reopened, or if an objection as provided for by section 321a is lodged, or if the legal dispute is continued following the pronouncement of a judgment subject to a reservation of rights, the court may direct, upon corresponding application being made, that compulsory enforcement be temporarily stayed, against or without provision of security, or that it be pursued only against the provision of security, and that the enforcement measures are to be revoked against provision of security. Compulsory enforcement may be discontinued without any security being provided only if it is demonstrated to the satisfaction of the court that the debtor is unable to provide security and that the enforcement would entail a disadvantage that it is impossible to compensate or remedy. (2) The decision is delivered by a court order. The court order is incontestable.
Section 708 Provisionally enforceable judgments delivered without security being provided
The following are to be declared provisionally enforceable without any provision of security:
1. Judgments delivered based on an acknowledgment or a waiver;
2. Default judgments and judgments handed down on the basis of the record as it stands against the party failing to appear at the hearing pursuant to section 331a;
3. Judgments by which the protest was overruled as inadmissible pursuant to section 341;
4. Judgments delivered in proceedings on claims arising from a deed, or from a bill of exchange, or in proceedings on claims asserted concerning the payment of a cheque;
5. Judgments declaring that a judgment subject to a reservation of rights delivered in proceedings on claims arising from a deed, from a bill of exchange or on claims asserted concerning the payment of a cheque is upheld by way of cancelling the reservation;
6. Judgments refusing to issue seizures or injunctions, or judgments repealing them;
7. Judgments delivered in disputes between the lessor and the lessee or sublessee of residential or other spaces, or between the lessee and the sublessee of such spaces regarding permission to use the spaces, the use or vacation of same, the continuation of the lease relationship for residential spaces based on sections 574 to 574b of the Civil Code (Bürgerliches Gesetzbuch, BGB) as well as regarding the retention of objects introduced into the leased spaces by the lessee or sublessee;
8. Judgments meting out an obligation to pay maintenance, annuities for the deprivation of a maintenance claim or annuities for injuries to limb or health, insofar as the obligation refers to the period following the time at which an action was brought in the courts and the last quarter preceding that time;
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9. Judgments pursuant to sections 861 and 862 of the Civil Code (Bürgerliches Gesetzbuch, BGB) for the restoration of possession or for the removal or cessation of an interference with possession;
10. Appellate judgments in disputes under property law. Where leave to appeal is denied by a judgment or court order pursuant to section 522 (2), this is to mandate that the judgment is provisionally enforceable without any provision of security;
11. Other judgments in disputes under property law if the matter on which the sentence is handed down is not in excess of 1,250 euros, or if only the decision as to costs is enforceable and enables enforcement in the amount of not more than 1,500 euros.
Section 709 Provisionally enforceable judgments delivered against security
Other judgments are to be declared provisionally enforceable against provision of security, the amount of which is to be determined. Insofar as a monetary claim is to be enforced, it shall be deemed compliant with the present rule if the amount of the security is specified in a determined ratio to the amount to be enforced in the particular case. Where a judgment upholding a default judgment is concerned, it is to stipulate that enforcement efforts under the default judgment may be continued only against provision of security.
Section 710 Exceptions from the provision of security by the creditor
Should the creditor be unable to provide the security pursuant to section 709, or only with great difficulty, the judgment is to be declared provisionally enforceable, upon corresponding application being made, also without any security being provided in those cases in which the suspension of enforcement would entail a disadvantage for the creditor that it is difficult to compensate or to assess, or in which it would entail a disadvantage that would be inequitable for the creditor for any other reason, in particular because he urgently needs the provision of the security for his subsistence or his economic activities.
Section 711 Authorisation to avert enforcement
In the cases provided for by section 708 numbers 4 to 11, the court is to determine that the debtor may avert the enforcement by providing security or by lodgment, unless the creditor provides security prior to enforcement. Section 709 second sentence shall apply mutatis mutandis, but shall apply for the debtor subject to the proviso that the security shall be provided in a certain proportion to the amount to be enforced under the ruling. Section 710 shall apply to the creditor mutatis mutandis.
Section 712 Petition for protection filed by the debtor
(1) Insofar as the enforcement would entail a disadvantage for the debtor that it is impossible to compensate or remedy, the court is to allow him, upon a corresponding petition being filed, to avert enforcement by providing security or by lodgment, without taking account of any security that the creditor may have provided; section 709 second sentence shall apply mutatis mutandis to the cases set out in section 709 first sentence. Where the debtor is not able to do so, the judgment shall not be declared provisionally enforceable, or its enforcement is to be limited to the measures designated in section 720a subsections (1) and (2). (2) The petition filed by the debtor shall not be complied with if an overriding interest of the creditor contravenes this. In the cases provided for by section 708, the court may direct that the judgment shall be provisionally enforceable only against provision of security.
Section 713 Non-issuance of orders serving the protection of debtors
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The orders admissible under sections 711 and 712 in favour of the debtor shall not be issued if there is no doubt that the prerequisites under which a legal remedy might be lodged against judgment are not met.
Section 714 Petitions regarding the preliminary enforceability of the judgment
(1) Petitions pursuant to sections 710, 711 third sentence, and section 712 are to be filed prior to the close of the hearing subsequent to which the judgment is delivered. (2) The factual prerequisites are to be demonstrated to the satisfaction of the court.
Section 715 Return of the security
(1) The court that has directed the creditor to provide security, or permitted the provision of security, shall direct the return of such security, upon a corresponding petition being filed, if a certification as to the legal validity of the judgment declared provisionally enforceable is presented. Where the security has been provided in the form of a bond, the court shall order the bond to expire. (2) Section 109 (3) shall apply mutatis mutandis.
Section 716 Amendment of the ruling
Should no decision have been delivered regarding a judgment’s provisional enforceability, the stipulations of section 321 are to be applied to any amendment of the judgment.
Section 717 Effects of a judgment reversing or modifying the original judgment
(1) Upon a judgment being pronounced that reverses or modifies the decision in the main action, or the declaration of enforceability, the judgment shall cease to be provisionally enforceable to the extent to which it is reversed or modified. (2) If a judgment declared provisionally enforceable is reversed or modified, the plaintiff shall be obligated to compensate the defendant for the damages he has suffered by the judgment being enforced, or by the payments he had to make, or any other actions he had to take in order to avert enforcement. The defendant may assert the claim to compensation of damages in the pending legal dispute; once this claim is asserted and filed, it is to be deemed as having become pending at the time at which the payment was made or other action was taken. (3) The stipulations of subsection (2) are not to be applied to the appellate judgments designated in section 708 number 10, to the exception of default judgments. Insofar as such a judgment is reversed or modified, the plaintiff is to be sentenced, upon a corresponding petition having been filed by the defendant, to reimburse the latter for the payments made or other actions taken on the basis of that prior judgment. The obligation of the plaintiff to so reimburse the defendant is determined by the rules as to the surrender of the result of any unjust enrichment. Once the petition has been filed, the claim to reimbursement is to be deemed as having become pending at the time at which the payment was made or other action was taken; even where the petition is not filed, the effects tied to the pendency of the matter pursuant to the stipulations under civil law shall occur with the payment being made or other action being taken.
Section 718 Preliminary decision as to provisional enforceability
(1) Upon corresponding application being made, preliminary oral argument is to be submitted in the appellate instance on fact and law regarding the provisional enforceability, and a decision is to be delivered. (2) The decision delivered as to the provisional enforceability by the appellate instance on fact and law is incontestable.
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Section 719 Provisional termination in the case of appellate remedies and protests having been
filed (1) Insofar as a judgment declared provisionally enforceable is protested against or appealed, the stipulations of section 707 shall apply mutatis mutandis. Compulsory enforcement under a default judgment may be terminated only against provision of security unless the default judgment was handed down in a manner not in keeping with the law, or the party failing to comply with procedural rules demonstrates to the satisfaction of the court that it failed to comply with procedural rules through no fault of its own. (2) If an appeal on points of law is lodged against a judgment declared provisionally enforceable, the court hearing the appeal on points of law shall direct, upon corresponding application being made, that compulsory enforcement is to be temporarily stayed should the enforcement entail a disadvantage that it is impossible to compensate or remedy, unless overriding interests of the creditor should contravene this decision. The parties are to demonstrate to the satisfaction of the court that the factual prerequisites are given. (3) The decision is delivered by court order.
Section 720 Lodgment in the event enforcement is averted
Where a debtor may avert enforcement by the provision of security or by lodgment pursuant to section 711 first sentence, section 712 (1), first sentence, the lodgment shall comprise attached cash or the proceeds from attached objects.
Section 720a Precautionary attachment
(1) The creditor may pursue compulsory enforcement under a judgment that is provisionally enforceable against security having been provided and by which the debtor was sentenced to pay cash, without providing security insofar as:
a) Movable property is attached;
b) A debt-securing mortgage or maritime mortgage is entered regarding the immovable property by way of compulsory enforcement.
The creditor may satisfy its claim from the asset so encumbered only upon having provided the security. (2) Section 930 subsections (2) and (3) shall apply mutatis mutandis to compulsory enforcement against the movable property. (3) The debtor has the authority to avert compulsory enforcement pursuant to subsection (1) by providing security in the amount of the principal claim for which the creditor may enforce his claim, unless the creditor has previously provided the security demanded of him.
Section 721 Time limit for the vacation of premises
(1) If a decision is delivered as to residential premises having to be vacated, the court may grant a period to the debtor for so clearing them, ex officio or upon a corresponding petition being filed, that is reasonable under the circumstances. The petition is to be filed prior to the close of the hearing upon which the judgment is handed down. Should the petition have been overlooked in the decision, section 321 shall apply; until the decision is delivered, the court may temporarily stay compulsory enforcement for the claim to vacation of premises upon corresponding application being made. (2) Where a decision is delivered as to premises having to be vacated in future and no time limit for such vacation has yet been stipulated, the debtor may be granted a period for clearing the premises that is reasonable under the circumstances, provided that he files the corresponding petition at least two (2) weeks prior to the date on which, according to the judgment, the premises are to be vacated. Sections 233 to 238 shall apply mutatis mutandis.
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(3) Upon corresponding application being made, the time limit for vacating the premises may be extended or shortened. The petition for an extension of the period is to be filed at the latest two (2) weeks prior to the expiry of the time limit set for the vacation of the premises. Sections 233 to 238 shall apply mutatis mutandis. (4) The court of first instance shall rule on petitions filed pursuant to subsections (2) or (3); as long as the matter is pending before the appellate instance on fact and law, the court of appeal is to so rule. The decision is delivered by a court order. Prior to the decision being taken, the opponent is to be heard. The court is authorised to deliver the orders designated in section 732 (2). (5) The period set for the vacation of premises may not amount to longer than one (1) year in total. This period of one (1) year shall be calculated from the date on which the judgment attains legal validity or, in cases in which the premises are to be vacated at a later date pursuant to a judgment for future vacation, from that date onwards. (6) A complaint subject to a time limit may be filed:
1. Against judgments deciding on the vacation of residential premises where the appellate remedies are directed solely against the refusal to grant a period for so vacating them, against the granting of such period, or against the determination of its extent;
2. Against orders on petitions filed under subsections (2) or (3). (7) Subsections (1) to (6) shall not apply to tenancy relationships for residential premises in the sense as defined by section 549 (2) number 3, nor shall they apply to the cases provided for by section 575 of the Civil Code (Bürgerliches Gesetzbuch, BGB). If a tenancy relationship in the sense as defined by section 575 of the Civil Code is terminated without prior notice, the period for vacating the premises may be granted at the longest until the time contractually agreed as the end of the tenancy relationship.
Section 722 Enforceability of foreign judgments
(1) Compulsory enforcement may be pursued under the judgment of a foreign court if such compulsory enforcement is ruled admissible by a judgment for enforcement. (2) That local court (Amtsgericht, AG) or regional court (Landgericht, LG) shall be competent for entering the judgment on the complaint filed for such judgment with which the debtor has his general venue, and in all other cases, that local court or regional court shall be competent with which a complaint may be filed against the debtor pursuant to section 23.
Section 723 Judgment for enforcement
(1) The judgment for enforcement is to be delivered without a review being performed of the decision’s legality. (2) The judgment for enforcement is to be delivered only once the judgment handed down by the foreign court has attained legal validity pursuant to the laws applicable to that court. The judgment for enforcement is not to be delivered if the recognition of the judgment is ruled out pursuant to section 328.
Section 724 Enforceable execution copy
(1) Compulsory enforcement will be pursued based on an execution copy of the judgment furnished with the court certificate of enforceability (enforceable execution copy). (2) The enforceable execution copy is issued by the records clerk of the registry of the court of first instance and, should the legal dispute be pending with a court of higher instance, by the records clerk of that court’s registry.
Section 725 Court certificate of enforceability
The court certificate of enforceability:
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“The above execution copy is issued to (designation of the party) for the purposes of compulsory enforcement “ is to be added to the execution copy of the judgment at its end, it is to be signed by the records clerk of the court registry, and is to be furnished with the court seal.
Section 726 Enforceable execution copies where payments or other actions are subject to
conditions (1) In cases in which the enforcement of judgments depends, by their content, on the occurrence of other facts than the provision of security as incumbent on the creditor, which facts are to be proven by the creditor, an enforceable execution copy may be issued only if such proof is established by public records or documents, or records or documents that have been publicly certified. (2) Insofar as the enforcement of judgments depends on payments to be concurrently made to the debtor by the creditor, or on other actions to be taken by same, proof of the debtor having been satisfied, or of his defaulting on his acceptance of performance, shall be required only if the performance incumbent on the debtor consists of his making a declaration of intent.
Section 727 Enforceable execution copies for and against successors in title
(1) An enforceable execution copy may be issued to the successor in title of the creditor designated in the judgment as well as against that successor in title of the debtor designated in the judgment, and against that possessor of the object that is the subject matter of the legal dispute, against whom the judgment has taken effect pursuant to section 325, provided that the legal succession or the circumstances of possession are known to the court or are proven by public records or documents, or records or documents that have been publicly certified. (2) If the legal succession or the circumstances of possession are known to the court, this is to be mentioned in the court certificate of enforceability.
Section 728 Enforceable execution copies for reversionary heirs or executors
(1) Where a judgment has been delivered to the provisional heir that, pursuant to section 326, takes effect against the reversionary heir, the stipulations of section 727 shall apply mutatis mutandis to the issuance of an enforceable execution copy for and against the reversionary heir. (2) If a judgment has been delivered to the executor that takes effect against the heir pursuant to section 327, the same shall apply to the issuance of an enforceable execution copy for and against the heir. An enforceable execution copy may be issued against the heir also in those cases in which the executor is still administering the estate.
Section 729 Enforceable execution copies against parties taking over the property of another
person and against parties acquiring firms (1) Where a person has taken over the property of another person by way of a contract with the latter, and after the culpability of that other party has been determined in a final and binding judgment, the stipulations of section 727 shall apply mutatis mutandis to the issuance of an enforceable execution copy of the judgment against the party so taking over property or acquiring a firm. (2) The same shall apply to the issuance of an enforceable execution copy against that person who continues a commercial enterprise acquired while both parties are alive (inter vivos), operating it under the same name, with a view to the liabilities for which that person is liable pursuant to section 25 (1), first sentence, subsection (2) of the Commercial Code
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(Handelsgesetzbuch), provided such liabilities have been established in a final and binding judgment against the earlier proprietor prior to the acquisition of the business.
Section 730 Hearing the debtor
In the cases provided for by section 726 (1) and sections 727 to 729, the debtor may be heard prior to the issuance of the enforceable execution copy.
Section 731 Action brought for issuance of the court certificate of enforceability
Should it not be possible to provide proof in the manner required by section 726 (1) and sections 727 to 729 by public records or documents, or records or documents that have been publicly certified, the creditor is to file an action based on the judgment stipulating the issuance of a court certificate of enforceability with the court of first instance hearing the case.
Section 732 Reminder serving as a legal remedy against the issuance of the court certificate of
enforceability (1) The court the registry of which has issued the certificate of enforceability shall decide on objections filed by the debtor concerning the admissibility of the court certificate of enforceability. The decision is delivered by a court order. (2) Prior to delivering the decision, the court may issue an interim order; in particular, the court may direct that compulsory enforcement is to be temporarily stayed, against provision of security or without provision of security, or that it is to be continued only against the provision of security.
Section 733 Additional enforceable execution copies
(1) Prior to an additional enforceable execution copy being issued, the debtor may be heard unless the execution copy first issued is returned. (2) The court registry is to notify the opponent of the fact that an additional execution copy has been issued. (3) The additional execution copy is to be expressly designated as such.
Section 734 Note recorded on the original of the judgment regarding the issuance of an execution
copy Prior to physical delivery of an enforceable execution copy, it is to be noted on the original of the judgment for which party the execution copy was issued, and at what time this was done. Where the court records of the dispute are kept as electronic documents, this note is to be recorded in a separate electronic document. The document is to be joined to the judgment such that it cannot be separated.
Section 735 Compulsory enforcement against an association having no legal capacity
In order to pursue compulsory enforcement against the assets of an association having no legal capacity, the delivery of a judgment against this association shall be deemed compliant with this rule.
Section 736 Compulsory enforcement against a partnership under the Civil Code
The delivery of a judgment against all partners of a partnership established pursuant to section 705 of the Civil Code (Bürgerliches Gesetzbuch, BGB) is required in order to pursue compulsory enforcement against the assets of such partnership.
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Section 737 Compulsory enforcement in the cases of usufruct rights concerning assets or
inheritance (1) If assets are subject to usufruct rights, compulsory enforcement against the objects that are subject to the usufruct rights for liabilities incurred prior to the usufruct’s establishment by the party having established the usufruct shall be admissible if the party establishing the usufruct right has been sentenced to perform under compulsory enforcement and if the beneficiary of the usufruct has been sentenced to tolerate it. (2) The same shall apply, in cases in which usufruct has been established for an inheritance, to the liabilities of the estate.
Section 738 Enforceable execution copy issued against the beneficiaries of usufruct
(1) Where the usufruct of assets was established following the final and binding determination of the debts of the party establishing such usufruct, the stipulations of sections 727, 730 to 732 shall apply mutatis mutandis to the issuance of an enforceable execution copy of the judgment against the beneficiary of the usufruct that has been delivered with a view to the objects subject to the usufruct right. (2) The same shall apply, if usufruct has been established for an inheritance, to the issuance of an enforceable execution copy of the judgment promulgated against the testator.
Section 739 Presumption of custody and control in the case of compulsory enforcement against
spouses and partners in a civil union (1) Insofar as it is presumed, to the benefit of the creditor of the spouse in a marriage pursuant to section 1362 of the Civil Code (Bürgerliches Gesetzbuch, BGB), that the debtor is the owner of movable objects, then solely the debtor shall be deemed to be, in the context of implementing the compulsory enforcement, the person having custody and control of those objects and their possessor, notwithstanding any rights of third parties. (2) Subsection (1) shall apply mutatis mutandis to the presumption provided for by section 8 (1) of the Act on Civil Unions (Lebenspartnerschaftsgesetz, LPartG) to the benefit of the creditor of one of the partners in a civil union.
Section 740 Compulsory enforcement with respect to the common marital property of both
spouses (1) If a marriage is subject to the regime of common marital property and one of the spouses manages the common marital property alone, a judgment delivered against that spouse shall be required, and deemed compliant with the present rule, for pursuing compulsory enforcement against the common marital property of both spouses. (2) If the spouses are jointly managing their common marital property, compulsory enforcement against the common marital property of both spouses shall be admissible only if both spouses have been sentenced to make payments or to take other actions.
Section 741 Compulsory enforcement against the common marital property of both spouses
where there is a business If a marriage is subject to the regime of common marital property and one of the spouses who is not managing the common marital property, or not managing it alone, is doing business as a sole trader, a judgment delivered against that spouse shall be deemed compliant with the present rule for pursuing compulsory enforcement against the common marital property of both spouses, unless, at the time at which the matter became pending, the protest filed by the other spouse against the operation of the business, or a revocation of the spouse’s consent to the business, had been entered in the Matrimonial Property Register (Güterrechtsregister).
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Section 742 Enforceable execution copy in the case of marriages becoming subject to the regime
of common marital property only in the course of the legal dispute If the marriage has become subject to the regime of common marital property only after a legal dispute has become pending that is being pursued by one of the spouses, or against one of the spouses, and where that spouse does not manage the common marital property, or does not manage it alone, the stipulations of sections 727, 730 to 732 shall apply mutatis mutandis to the issuance of an execution copy of the judgment that is enforceable with a view to the common marital property for or against the other spouse.
Section 743 Terminated regime of common marital property
Once the regime of common marital property has been terminated, compulsory enforcement against the common marital property of both spouses shall be admissible prior to the distribution of the property if both spouses have been sentenced to making the payment or taking any other action, or if one spouse has been so sentenced and the other spouse has been sentenced to tolerate compulsory enforcement.
Section 744 Enforceable execution copy where the regime of common marital property has been
terminated If the regime of common marital property has been terminated following the termination of a legal dispute involving the spouse who is managing the common marital property alone, the stipulations of sections 727, 730 to 732 shall apply mutatis mutandis to the issuance of an execution copy of the judgment that is enforceable against the other spouse with a view to the common marital property.
Section 744a Compulsory enforcement in the case of a community of property and assets
If a marriage is subject to the regime of a community of property and assets, pursuant to Article 234 section 4 (2) of the Introductory Law for the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch, EGBGB), then sections 740 to 744, 774 and 860 shall apply mutatis mutandis to compulsory enforcement against the objects forming part of the community of property and assets.
Section 745 Compulsory enforcement in the case of the regime of common marital property
continuing in force (1) Where there is a continuing regime of common marital property, a judgment delivered against the surviving spouse shall be required, and deemed compliant with the present rule, in order to pursue compulsory enforcement against the common marital property of both spouses. (2) Following the end of the continuing regime of common marital property, the stipulations of sections 743 and 744 shall apply subject to the proviso that the stead of the spouse managing the common marital property alone shall be taken by the surviving spouse, and that the stead of the other spouse shall be taken by the descendants entitled to a share of the marital property.
Section 746 (repealed)
Section 747 Compulsory enforcement against an estate that has not been partitioned
In cases in which several parties are heirs of an estate, compulsory enforcement against an estate will require a judgment to be delivered against all heirs until the estate is partitioned.
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Section 748 Compulsory enforcement where an executor has been appointed
(1) Insofar as an estate is subject to administration by an executor, a judgment delivered against the executor shall be required, and deemed compliant with the present rule, in order to pursue compulsory enforcement against the estate. (2) Should the executor be only entitled to administer individual items constituting the estate, compulsory enforcement against these items shall be admissible only where the heir is sentenced to make payment or to take other action and where the executor is sentenced to tolerate compulsory enforcement. (3) In the case provided for by subsection (1) as well as in the case provided for by subsection (2), a judgment delivered both against the heir and against the executor is required in order to pursue compulsory enforcement against a claim on a compulsory portion of the inheritance.
Section 749 Enforceable execution copies for and against executors
The stipulations of sections 727, 730 to 732 shall apply mutatis mutandis to the issuance of an enforceable execution copy for or against the executor of a judgment delivered for or against the testator. Based on such an execution copy, compulsory enforcement shall be admissible only with regard to the items constituting the estate subject to administration by the executor.
Section 750 Prerequisites for compulsory enforcement
(1) Compulsory enforcement may be commenced only if the persons for and against whom it is to be performed have been designated by name in the judgment or in the court certificate of enforceability attached to it, and if the judgment has already been served or is served concurrently. Service by the creditor shall be deemed compliant with the present rule; in such event, the execution copy of the judgment need not set out the facts and circumstances on which the ruling is based, nor need it set out its reasons. (2) Where the enforcement concerns a judgment the enforceable execution copy of which was issued pursuant to section 726 (1), or where a judgment that is legally effective for or against one of the persons designated therein in accordance with sections 727 to 729, 738, 742, 744, section 745 (2) and section 749 is to be enforced for or against one of these persons, the court certificate of enforceability must also have been served along with the judgment to be enforced prior to the commencement of compulsory enforcement, or must be served concurrently with the commencement of compulsory enforcement, and where the court certificate of enforceability has been issued based on public records or documents, or based on records or documents that have been publicly certified, a copy of such records of documents is likewise to be served. (3) A compulsory enforcement pursuant to section 720a may be commenced only if the judgment and the court certificate of enforceability have been served at least two (2) weeks earlier.
Section 751 Conditions for the commencement of enforcement
(1) Should the assertion of the claim be dependent on the occurrence of a calendar date, compulsory enforcement may not be commenced prior to midnight of that day of the calendar. (2) Should the enforcement depend on the provision of security incumbent on the creditor, compulsory enforcement may only be commenced or continued if the provision of security has been proven by a public record or document, or a record or document that has been publicly certified, and if a copy of such record or document has already been served or is served concurrently.
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Section 752 Provision of security in the event of partial enforcement
Where the creditor pursues compulsory enforcement in the cases as described in section 751 (2) only for a partial amount, the amount of the security to be provided shall be in proportion to the ratio between the partial amount and the total amount. If the debtor may avert the enforcement, in the cases provided for by section 709, pursuant to section 712 subsection (1), first sentence, the first sentence shall apply to him mutatis mutandis.
Section 753 Enforcement by court-appointed enforcement officers
(1) Unless the compulsory enforcement is assigned to the courts, it will be implemented by court-appointed enforcement officers who are to effect it on behalf of the creditor. (2) The creditor may avail himself of the assistance of the court registry in charging an officer with the task of compulsory enforcement. The court-appointed enforcement officer charged with the task by the court registry shall be deemed to have been charged by the creditor. (3) The Federal Ministry of Justice is authorised to introduce forms, use of which shall be mandatory, for charging the court-appointed enforcement officer with his task as provided for by subsection (2), such forms being subject to approval by the Bundesrat and being made by statutory instrument. Special forms may be provided for instances in which instructions are submitted electronically.
Section 754 Enforcement instructions and enforceable execution copy
(1) The court-appointed enforcement officer is authorised by the enforcement instructions, and by the enforceable execution copy being physically handed over to him, to accept performance by the debtor, to issue receipts in this regard, and to enter into payment agreements with effect for the creditor, subject to the stipulations set out in Section 802b. (2) The court-appointed enforcement officer is authorised, by his possession of the enforceable execution copy, to effect compulsory enforcement and to take the actions designated in subsection (1) vis-à-vis the debtor and third parties. Where the instructions to the enforcement officer were deficient or where they were issued with restrictions, this fact may not be asserted by the creditor vis-à-vis such persons.
Section 755 Determining the debtor’s place of abode
(1) Where the debtor’s place of residence or his usual place of abode is not known, the court-appointed enforcement officer is permitted to determine the debtor’s place of abode, based on the enforcement instructions and due to his having been physically handed over the enforceable execution copy, by obtaining the current addresses along with information on the debtor’s main residence and secondary residence from the registration authority. (2) Should it not be possible to determine the debtor’s place of abode pursuant to subsection (1), the court-appointed enforcement officer is permitted to take the following actions:
1. To initially obtain from the Central Register of Foreigners information on the foreigners authority keeping the files on the debtor, along with information on the debtor’s having moved to or from a location, and subsequently to obtain the debtor’s place of abode from the foreigners authority keeping the files on the debtor identified by the inquiry made with the Central Register of Foreigners,
2. To obtain from the statutory pension insurance funds the address of the debtor as currently filed there, as well as his current or future place of abode,
3. To obtain from the Federal Motor Transport Authority (Kraftfahrt-Bundesamt) the vehicle keeper information pursuant to section 33 (1), first sentence, no. 2 of the Road Traffic Act (Strassenverkehrsgesetz, StVG).
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Where the debtor is a citizen of the Union, the court-appointed enforcement officer may collect the data pursuant to number 1 of the first sentence only if he has at hand factual indications giving rise to the assumption that it will be determined that the debtor has no rights under the principle of freedom of movement, or has lost such rights. The transmission to the enforcement officer of the data obtained pursuant to number 1 of the first sentence is ruled out if the debtor is a citizen of the Union regarding whom it has not been determined that he has no rights under the principle of freedom of movement, or that he has lost such rights. The enforcement officer is permitted to collect the data pursuant to nos. 2 and 3 of the first sentence only if the claims to be enforced amount to at least 500 euros; the enforcement costs and ancillary claims shall be included in the calculation only if they alone are the subject matter of the enforcement instructions.
Section 756 Compulsory enforcement where performance is to be made concurrently
(1) If the enforcement depends on concurrent performance by the creditor to the debtor, the court-appointed enforcement officer may not commence compulsory enforcement prior to having offered the debtor the performance to which the latter is entitled, doing so in a manner establishing default of acceptance, unless proof is submitted by public records or documents that the debtor has been satisfied or is defaulting on his acceptance, or by records or documents that have been publicly certified, and a copy of such records or documents has already been served, or is served concurrently. (2) The court-appointed enforcement officer may commence compulsory enforcement if the debtor declares, upon the court-appointed enforcement officer having orally offered the payment or other action, that he will not accept such payment or other action.
Section 757 Physical submission of the legal title and receipt note
(1) Following receipt of the payment or following other action he has taken, the court- appointed enforcement officer is to surrender to the debtor the enforceable execution copy in addition to a receipt note; should performance be made only partially, he is to note this on the enforceable execution copy and is to issue a receipt note to the debtor. (2) The right of the debtor to retroactively demand that the creditor himself issue a receipt note is not affected by the present rules.
Section 758 Searches; use of force
(1) The court-appointed enforcement officer is authorised to search the debtor’s residence and any means of storage insofar as the purpose of the enforcement so requires. (2) He is authorised to have any locked house doors opened, as well as doors to rooms and means of storage that may be locked. (3) Should the court-appointed enforcement officer encounter resistance, he shall have authority to use force and may for this purpose ask the police for support.
Section 758a Search warrant issued by a judge; enforcement at an inopportune time
(1) The debtor’s residence may be searched without his consent only on the basis of a search warrant issued by a judge with the local court (Amtsgericht, AG) in the jurisdiction of which the search is to be performed. This shall not apply where procuring the warrant would jeopardise the success of the search. (2) Subsection (1) shall not apply to the enforcement of a legal document ordering the vacation or surrender of premises, nor shall it be applied to the enforcement of a warrant for arrest pursuant to section 802g. (3) Where the debtor consents to the search, or where a warrant pursuant to subsection (1), first sentence, has been issued, or where this can be dispensed with pursuant to subsection (1), second sentence, persons sharing in the custody of the debtor’s residence
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are to tolerate the search. Any inequitable hardship for persons sharing in the custody and control of his property is to be avoided. (4) The court-appointed enforcement officer shall not take an enforcement action during the night-time and on Sundays and holidays if this would entail an inequitable hardship for the debtor and the persons sharing in the custody and control of his property, or if the expected results are not congruent with the scope of the intrusion; in residences, the court-appointed enforcement officer shall take an enforcement action only on the basis of a special order issued by a judge at the local court (Amtsgericht, AG). The night-time hours are defined as the time from 21:00 hours to 6:00 hours. (5) At the time compulsory enforcement is implemented, the order pursuant to subsection (1) is to be shown. (6) The Federal Ministry of Justice is authorised to introduce forms for the petition for an issuance of a search warrant by a judge as provided for by subsection (1), such forms being subject to approval by the Bundesrat and being made by statutory instrument. To the extent forms have been introduced in accordance with the first sentence, the claimant must use them. Different types of forms may be introduced for proceedings before courts that process these matters electronically, and for proceedings before courts that do not process these matters electronically.
Section 759 Involvement of witnesses
In cases in which an enforcement action is resisted, or in which neither the debtor nor an adult family member, a person employed by the family or an adult permanent cohabitant is present when the enforcement action is to be taken in the debtor’s residence, the court- appointed enforcement officer is to involve as witnesses two (2) adult persons, or a municipal official, or a police officer.
Section 760 Inspection of files; copies of files
Each person involved in the enforcement proceedings is to be allowed to inspect the files of the court-appointed enforcement officer upon a corresponding request being made, and copies of individual documents in the file are to be issued to that person. If the court- appointed enforcement officer keeps his files as electronic records, inspection of the files shall be enabled by providing hard-copy printouts, by transmitting electronic documents, or by displaying them on a screen; this also applies to the files electronically stored pursuant to section 885a (2), second sentence.
Section 761 (repealed)
Section 762 Record of the hearing regarding enforcement measures
(1) The court-appointed enforcement officer is to prepare a record of each enforcement action he has taken. (2) The record must include:
1. The place and date of the enforcement action;
2. The subject matter of the enforcement action, briefly outlining the essential course of the enforcement and actions taken therein;
3. The names of the persons with whom he has had dealings;
4. The signature of these persons and the note that the document was signed after having been read out loud to them, or after having been submitted to them for their review, and after having been approved;
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5. The signature of the court-appointed enforcement officer. (3) Should it not have been possible to conform to one of the requirements designated in number 4, the reasons therefor are to be provided.
Section 763 Notices and communications
(1) The notices and other communications forming part of the enforcement measures are to be made orally by the court-appointed enforcement officer and shall be included fully in the record. (2) Where this cannot be done orally, the court-appointed enforcement officer is to serve a copy of the record or is to mail it. The record must set out the note that this rule has been complied with. No service may be made by publication.
Section 764 Court responsible for execution
(1) Ordering enforcement measures as assigned to the courts, and the assistance with such measures, is the responsibility of the local courts (Amtsgericht, AG) as the courts responsible for execution. (2) Unless another local court is designated by law, that local court shall be responsible for execution in the district of which the enforcement proceedings are to be performed or have been performed. (3) The decisions of the execution court are issued by a court order.
Section 765 Orders issued by the execution court where performance is to be made concurrently
If the enforcement depends on concurrent performance by the creditor to the debtor, the court responsible for execution may only direct enforcement activities if:
1. Proof is provided, by submitting public records or documents, or records or documents that have been publicly certified, and a copy of such records or documents has already been served, that the debtor has been satisfied or is defaulting on acceptance; no service need be made if the court-appointed enforcement officer had already commenced compulsory enforcement pursuant to section 756 (1) and such proof is provided by the record prepared by the court-appointed enforcement officer; or
2. The court-appointed enforcement officer has effected an enforcement measure pursuant to section 756 (2) and this is proven by the record prepared by the court- appointed enforcement officer.
Section 765a Protection from execution
(1) Upon a corresponding petition being filed by the debtor, the court responsible for execution may reverse a measure of compulsory enforcement in its entirety or in part, may prohibit it, or may temporarily stay such measure if, upon comprehensively assessing the creditor’s justified interest in protection, the court finds that the measure entails a hardship that due to very special circumstances is immoral (contra bonos mores). The execution court is authorised to deliver the orders designated in section 732 (2). Should the measure concern an animal, the execution court is to consider, in weighing the matter, the responsibility that the person has for the animal. (2) The court-appointed enforcement officer may delay a measure serving to obtain the surrender of objects until the court responsible for execution delivers a decision, but may not so delay it for longer than one (1) week, if the prerequisites set out in subsection (1), first sentence, are demonstrated to his satisfaction and if it was not possible for the debtor to refer the matter to the execution court. (3) In matters pertaining to the vacation of premises, the petition pursuant to subsection (1) is to be filed at the latest within two (2) weeks prior to the date set for the vacation of the
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premises, unless the grounds on which the petition is based came about only after this time or the debtor was prevented from filing the petition in due time through no fault of his own. (4) The execution court shall reverse its order, upon a corresponding petition being filed, or shall modify it, if this is mandated with a view to the change of the overall factual situation. (5) Enforcement activities may be abrogated in the cases provided for by subsection (1), first sentence, and subsection (4) only once the order has become final and binding.
Section 766 Reminder serving as a legal remedy against the nature and manner of compulsory
enforcement (1) The court responsible for execution shall rule on petitions, objections, and reminders concerning the nature and manner of compulsory enforcement or the manner of proceeding to be observed by the court-appointed officer in the course of compulsory enforcement. The execution court is authorised to deliver the orders designated in section 732 (2). (2) The court responsible for execution shall also be entitled to hand down the decision should a court-appointed enforcement officer refuse to assume the enforcement instructions or to perform an enforcement action in accordance with the instructions, or if reminders are lodged for the costs charged by the court appointed enforcement officer.
Section 767 Action raising an objection to the claim being enforced
(1) Debtors are to assert objections that concern the claim itself as established by the judgment by filing a corresponding action with the court of first instance hearing the case. (2) Such objections by way of an action may admissibly be asserted only insofar as the grounds on which they are based arose only after the close of the hearing that was the last opportunity, pursuant to the stipulations of the present Code, for objections to be asserted, and thus can no longer be asserted by entering a protest. (3) In the action that he is to file, the debtor must assert all objections that he was able to assert at the time at which he filed the action.
Section 768 Action brought against a court certificate of enforceability
The stipulations of section 767 subsections (1) and (3) shall apply mutatis mutandis if, in the cases provided for by section 726 (1), sections 727 to 729, 738, 742, 744, section 745 (2) and section 749, the debtor disputes that the prerequisite for the issuance of the court certificate of enforceability has in fact been met, as had been assumed to be proven at the time such court certificate was issued, and shall so apply notwithstanding the authority of the debtor in such cases to file objections against the admissibility of the court certificate of enforceability pursuant to section 732.
Section 769 Interim orders
(1) Upon a corresponding petition being filed, the court hearing the case may direct that until the judgment has been entered regarding the objections designated in sections 767 and 768, compulsory enforcement be stayed against or without provision of security, or that it be continued only against the provision of security and that enforcement activities are to be abrogated against provision of security. The court shall not assess any security for the stay of compulsory enforcement where the debtor is unable to provide security, and where the action he is bringing holds out sufficient prospects of success. The factual assertions on which the petition is based are to be demonstrated to the satisfaction of the court. (2) In urgent cases, the court responsible for execution may issue such an order, setting a time limit for the court hearing the case to deliver its decision. Once the deadline has expired without success, the compulsory enforcement shall be continued. (3) The decision regarding these petitions is issued by a court order.
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(4) Insofar as an action for modification is pending that is directed at a reduction, subsections (1) to (3) shall apply mutatis mutandis.
Section 770 Interim orders set out in the judgment
The court hearing the case may issue the orders designated in the preceding section, or it may reverse, modify, or confirm any orders already issued, in the judgment by which a decision is taken as to the objections. The stipulations of section 718 shall apply mutatis mutandis to the contestation of such decision.
Section 771 Third-party proceedings instituted to prevent the execution of a judgment
(1) If a third party claims to have title preventing the disposal of an object subject to compulsory enforcement, it shall lodge the opposition against compulsory enforcement by filing a corresponding court action with the court in the district of which compulsory enforcement is being pursued. (2) Where the action is filed both against the creditor and the debtor, they are to be deemed joined parties. (3) The stipulations of sections 769 and 770 shall apply mutatis mutandis to instances in which compulsory enforcement is stayed, and to the abrogation of any enforcement activities already pursued. Enforcement activities admissibly may be abrogated also without any security being provided.
Section 772 Third-party proceedings instituted to prevent the execution of a judgment where the
disposition of assets has been prohibited As long as a prohibition of disposition of the type designated in sections 135 and 136 of the Civil Code (Bürgerliches Gesetzbuch, BGB) exists, the object to which such prohibition refers shall not be disposed of or transferred, by way of compulsory enforcement of any personal claim or based on a right that, as a result of the prohibition, is invalid. An opposition may be lodged subject to section 771 based on the prohibition of disposition.
Section 773 Third-party proceedings instituted to prevent the execution of a judgment by a
reversionary heir An object forming part of the inheritance of the provisional heir shall not be disposed of or transferred by way of compulsory enforcement if the disposition or the transfer is invalid vis- à-vis the reversionary heir in those cases in which the reversionary succession occurs pursuant to section 2115 of the Civil Code (Bürgerliches Gesetzbuch, BGB). The reversionary heir may lodge an opposition subject to the provisions of section 771.
Section 774 Third-party proceedings instituted to prevent the execution of a judgment by a
spouse If, pursuant to section 741, compulsory enforcement is pursued with regard to the common marital property of both spouses, one of the spouses may lodge an opposition pursuant to section 771 in those cases in which, with a view to the common marital property, the judgment promulgated against the other spouse has no legal effect for the opposing spouse.
Section 775 Termination or limitation of compulsory enforcement
Compulsory enforcement shall be terminated or limited where:
1. The execution copy of an enforceable decision is produced that shows that the judgment to be enforced or its provisional enforceability have been repealed, or that compulsory enforcement has been declared inadmissible, or that its termination has been directed;
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2. The execution copy of a court decision is produced that shows the temporary stay of enforcement or enforcement activities to have been directed, or that enforcement may be continued only against provision of security;
3. A public record or document is produced that shows that the security averting enforcement, or the lodgment required for this purpose, has been provided or made;
4. A public record or document is produced, or a private record or document created by the creditor, that shows that the creditor is satisfied after the delivery of the judgment to be enforced, or that he has consented to deferral;
5. The credit slip proving payment in cash or by wire transfer effected by a bank or savings bank is produced, showing that the amount required to satisfy the creditor has been paid into the account of the creditor or has been transferred to it for payment to same.
Section 776 Abrogation of enforcement activities
In the cases provided for by section 775 numbers 1 and 3, the enforcement activities already pursued are to be abrogated. In the cases provided for by numbers 4 and 5, these activities shall continue in force on a provisional basis; the same shall apply to the cases set out in number 2, provided that the decision does not also direct the repeal of the enforcement measures taken thus far.
Section 777 Reminder serving as a legal remedy in the event sufficient security has been provided
to the creditor Should the creditor possess a movable object belonging to the debtor, concerning which he is entitled to a security right or a right of retention for his claim, the debtor may oppose compulsory enforcement against his other assets pursuant to section 766 to the extent the claim is covered by the value of that object. If the creditor is entitled to such right concerning the object also for another claim, such opposition may only be admissibly lodged where this claim as well is covered by the value of the object.
Section 778 Compulsory enforcement prior to acceptance of an inheritance
(1) For as long as the heir has not accepted an inheritance, compulsory enforcement may admissibly be pursued only with regard to the estate for a claim against the estate. (2) Compulsory enforcement regarding any liability the heir may have on his own may not permissibly be pursued against the estate prior to the heir’s having accepted the inheritance. ,
Section 779 Continuation of compulsory enforcement following the debtor’s death
(1) Any compulsory enforcement that had already been commenced against the debtor at the time of his death shall be continued against his estate. (2) Should it be necessary to involve the debtor in performing an enforcement action, and should the inheritance not have been accepted yet, or should the heir be unknown, or should it be uncertain whether or not he has accepted the inheritance, the court responsible for execution is to appoint a special provisional representative for the heir, upon the creditor having filed the corresponding petition. No such appointment shall be made where a curator has been appointed for the estate or where an executor is responsible for administering the estate.
Section 780 Reservation as to the limited liability of an heir for the debts of the estate
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(1) A defendant sentenced as a debtor’s heir may assert a limitation of his liability only if this has been reserved in the judgment. (2) No such reservation is required if the government treasury is made the statutory heir by a ruling of the court, or if the judgment is delivered regarding a liability of the estate against an attorney for the estate or any other court-appointed curator of the estate, or against an executor responsible for administering the estate.
Section 781 Limited liability of an heir in compulsory enforcement proceedings
Should compulsory enforcement be pursued against the heir of the debtor, the limitation of liability shall not be taken into account until the heir has lodged objections against compulsory enforcement based on such limitation of liability.
Section 782 Defence pleas of the heir against creditors of the estate
On the basis of the defence pleas to which he is entitled pursuant to sections 2014 and 2015 of the Civil Code (Bürgerliches Gesetzbuch, BGB), the heir may only demand that compulsory enforcement be limited, for the duration of the periods determined therein, to such enforcement activities that are admissible in order to enforce a seizure. Where, prior to the expiry of the period, the opening of insolvency proceedings regarding the estate is petitioned, the limitation of compulsory enforcement is to be upheld also after the expiry of the period, upon a corresponding petition having been filed, until a final and binding judgment has been delivered regarding the opening of the insolvency proceedings regarding the estate.
Section 783 Defence pleas of the heir against personal creditors
The heir may demand a limitation of compulsory enforcement concerning the items constituting the estate pursuant to section 782 also from those creditors who are not creditors of the estate, unless the heir is liable for the estate’s liabilities without limitation.
Section 784 Compulsory enforcement where an estate is in administration or subject to
insolvency proceedings (1) If the administration of an estate has been directed, or if insolvency proceedings have been opened regarding the estate, the heir may demand that the enforcement activities be abrogated that have been taken to the benefit of a creditor of the estate against those of the heir’s assets that do not constitute part of the estate, unless the heir is liable for the estate’s liabilities without limitation. (2) In the case of the estate being in administration, the attorney for the estate shall be entitled to the same rights as the heir regarding the enforcement activities that have been pursued against the estate to the benefit of another creditor in his capacity as creditor of the estate.
Section 785 Action brought by the heir by way of raising an objection to the claim being enforced
The objections raised in accordance with sections 781 to 784 shall be dealt with in accordance with the stipulations of sections 767, 769, 770.
Section 786 Action raising an objection to the claim being enforced in the case of limited liability
(1) The stipulations of section 780 (1) and of sections 781 to 785 shall apply mutatis mutandis to the limited liability given pursuant to section 1489 of the Civil Code (Bürgerliches Gesetzbuch, BGB), while the stipulations of section 780 (1) and of sections 781 and 785 shall apply mutatis mutandis to the limited liability given pursuant to sections 1480, 1504, 1629a, 2187 of the Civil Code (Bürgerliches Gesetzbuch, BGB).
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(2) Where compulsory enforcement is pursued based on judgments promulgated prior to the date on which the Act Limiting the Liability of Minors (Minderjährigenhaftungsbeschränkungsgesetz) of 25 August 1998 entered into force (published in Federal Law Gazette (Bundesgesetzblatt, BGBl.) I page 2487) on 1 July 1999, the limitation of liability pursuant to section 1629a of the Civil Code (Bürgerliches Gesetzbuch, BGB) may be asserted also where it has not been reserved in the judgment pursuant to section 780 (1) of the present Code.
Section 786a Limitation of liability under the laws of the sea and the laws governing inland
waterways transport (1) The stipulations of section 780 (1) and of section 781 shall apply mutatis mutandis to the limitation of liability arising in the cases provided for by section 611 subsections (1) or (3), sections 612 to 616 of the Commercial Code (Handelsgesetzbuch, HGB) or pursuant to sections 4 to 5m of the Inland Waterways Act (Binnenschifffahrtsgesetz). (2) If the judgment has been promulgated subject to a reservation pursuant to section 305a, the following rules shall apply to compulsory enforcement:
1. Where a petition is filed to institute distribution proceedings under the laws of the sea or the laws governing inland waterways transport in accordance with the Distribution Ordinance under Shipping Laws (Schifffahrtsrechtliche Verteilungsordnung), in which the creditor is a party with his claim, the court shall deliver its decision pursuant to section 5 (3) of the Distribution Ordinance under Shipping Laws regarding the termination of compulsory enforcement; upon the institution of the distribution proceedings under the laws of the sea, the stipulations of section 8 subsections (4) and (5) of the Distribution Ordinance under Shipping Laws are to be applied; upon institution of the distribution proceedings under the laws governing inland waterways transport, the stipulations of section 8 subsections (4) and (5) in conjunction with section 41 of the Distribution Ordinance under Shipping Laws are to be applied.
2. Where, pursuant to Article 11 of the Convention on Limitation of Liability for Maritime Claims (section 611 (1), first sentence, of the Commercial Code (Handelsgesetzbuch, HGB)), a fund has been established by the debtor, or on his behalf, in another signatory state of the Convention, the stipulations of section 50 of the Distribution Ordinance under Shipping Laws are to be applied to the extent the creditor has asserted his claim against the fund. Where the creditor has not asserted the claim against the fund, or where the prerequisites set out in section 50 (2) of the Distribution Ordinance under Shipping Laws have not been met, any objections filed on the basis of the right to limit liability shall be dealt with and terminated pursuant to the stipulations of sections 767, 769, 770; the same shall apply where the fund is established in the other signatory state only upon the right to limit liability being asserted.
3. If a fund has been established by the debtor, or on his behalf, in another signatory state of the Strasbourg Convention on Limitation of Liability in Inland Navigation (CLNI, published in the Federal Law Gazette (Bundesgesetzblatt, BGBl.) 1988 II page 1643), then section 52 of the Distribution Ordinance under Shipping Laws is to be applied should the creditor have asserted his claim against the fund. Where the creditor has not asserted the claim against the fund, or where the prerequisites set out in section 52 (3) of the Distribution Ordinance under Shipping Laws have not been met, any objections filed on the basis of the right to limit liability pursuant to sections 4 to 5m of the Inland Waterways Act (Binnenschifffahrtsgesetz) shall be dealt with and terminated pursuant to the stipulations of sections 767, 769, 770; the same shall apply where the fund is established in the other signatory state only upon the right to limit liability being asserted.
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(3) If the judgment of a foreign court has been promulgated subject to the reservation that the defendant may assert the right to limit liability if a fund has been established pursuant to Article 11 of the Convention on Limitation of Liability for Maritime Claims or pursuant to Article 11 of the Strasbourg Convention on Limitation of Liability in Inland Navigation, or if it is so established upon the right to limit liability being asserted, the stipulations of subsection (2) shall apply mutatis mutandis to compulsory enforcement against the claim established by that judgment.
Section 787 Compulsory enforcement where real estate or a ship is ownerless
(1) Insofar as the compulsory enforcement is to assert a right to a plot of real estate that was relinquished by its previous owner pursuant to section 928 of the Civil Code (Bürgerliches Gesetzbuch, BGB) and has not yet been acquired by the party entitled to appropriation, the court responsible for execution is to appoint a representative, upon corresponding application being made, who shall be responsible, until title to the property has been entered in the land register in the name of a new owner, for protecting the rights and fulfilling the obligations resulting from the property in compulsory enforcement proceedings. (2) Subsection (1) shall apply mutatis mutandis where a right to a registered ship or ship under construction is to be asserted by compulsory enforcement, which ship or ship under construction had been relinquished by its owner pursuant to section 7 of the Act on Rights to Registered Ships and Ships under Construction (Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken) of 15 November 1940 (Law Gazette of the Reich (Reichsgesetzblatt, RGBl.) I page 1499) and has not yet been acquired by the party entitled to appropriation.
Section 788 Costs of compulsory enforcement
(1) To the extent the costs of compulsory enforcement were required (section 91), they shall be borne by the debtor; they are to be recovered concurrently with the claim subject to compulsory enforcement. The costs of preparing an execution of the judgment and of serving it shall also be deemed to be the costs of compulsory enforcement. To the extent a plurality of debtors have been sentenced as joint and several debtors, they shall also be liable for the costs of compulsory enforcement as joint and several debtors; section 100 subsections (3) and (4) shall apply mutatis mutandis. (2) Upon corresponding application being made, the execution court with which an enforcement action is pending at the time of the application shall determine the costs pursuant to section 103 (2) and sections 104 and 107; after the termination of compulsory enforcement, this shall be done by the court in the district of which the last enforcement action was taken. If enforcement is pursued in accordance with the stipulations of sections 887, 888 and 890, the court of first instance hearing the case shall take the decision. (3) The debtor is to be reimbursed for the costs of compulsory enforcement wherever the judgment based on which compulsory enforcement was pursued has been repealed. (4) The court may impose on the creditor the costs of proceedings pursuant to sections 765a, 811a, 811b, 829, 850k, 850l, 851a and 851b, in their entirety or in part, should this be equitable for special reasons given in the creditor’s conduct.
Section 789 Involvement of public authorities
Should a public authority need to be involved for the purposes of compulsory enforcement, the court is to request that the public authority take action.
Section 790 (repealed)
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Section 791 (repealed)
Section 792 Issuance of records or documents to creditors
If the creditor requires a certificate of inheritance for the purposes of compulsory enforcement, or any other record or document that is to be issued to the debtor, upon corresponding application being made, by a public authority, a civil servant or a notary, he may take the stead of the debtor in demanding that it be so issued.
Section 793 Complaint subject to a time limit
A complaint subject to a time limit may be filed against decisions that may be taken in compulsory enforcement proceedings without a hearing for oral argument being held.
Section 794 Further enforceable legal documents
(1) Compulsory enforcement may furthermore be pursued:
1. Based on settlements concluded by the parties, or between one of the parties and a third party, in order to resolve the legal dispute either in its full scope or as regards a part of the subject matter of the litigation, before a German court or before a dispute- resolution entity established or recognised by the Land department of justice (Landesjustizverwaltung), as well as based on settlements that have been recorded pursuant to section 118 (1), third sentence, or section 492 (3) for the record of the judge;
2. Based on orders assessing the costs;
2a. (repealed)
2b. (repealed)
3. Based on decisions against which a complaint may be lodged as an appellate remedy;
3a. (repealed)
4. Based on writs of execution;
4a. Based on decisions declaring arbitration awards as enforceable, provided that the decisions are final and binding or have been declared provisionally enforceable;
4b. Based on orders pursuant to section 796b or section 796c;
5. Based on records or documents that have been recorded in accordance with the requirements as to form by a German court or by a German notary within the bounds of his official authority, provided that the record or document has been recorded regarding a claim that can be provided for by a settlement, that is not directed at obtaining a declaration of intent, and that does not concern the existence of a tenancy relationship for residential spaces, and furthermore provided that the debtor has subjected himself, in the record or document, to immediate compulsory enforcement of the claim as specified therein;
6. Based on European orders for payment that have been declared enforceable. (2) Insofar as, pursuant to the stipulations of sections 737, 743, section 745 (2), and of section 748 (2) it is necessary to sentence a party involved to tolerating compulsory enforcement, this shall be substituted by the party involved approving, in a record or document prepared pursuant to subsection (1) number 5, the immediate compulsory enforcement against the objects that are subject to the title he holds.
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Section 794a Compulsory enforcement based on a settlement reached regarding the vacation of
premises (1) Where a debtor has entered into obligation to vacate residential premises in a settlement based on which compulsory enforcement may be pursued, the local court (Amtsgericht, AG) in the district of which the residential premises are located may approve, upon corresponding application being made, a period for clearing the premises that is reasonable under the circumstances. The petition is to be filed at the latest two (2) weeks prior to the day on which the premises are to be vacated pursuant to the settlement; sections 233 to 238 shall apply mutatis mutandis. The decision is delivered by a court order. Prior to the decision, the creditor is to be heard. The court is authorised to deliver the orders designated in section 732 (2). (2) The period for clearing the premises may be extended or shortened upon corresponding application being made. Subsection (1) second to fifth sentences shall apply mutatis mutandis. (3) The period for clearing the premises may not amount to more than one (1) year in total, calculated from the day on which the settlement was concluded. If the settlement has stipulated a later date for clearing the premises, the period set therefor shall be calculated from that day onwards. (4) A complaint subject to a time limit may be lodged against the decision delivered by the local court (Amtsgericht, AG). (5) Subsections 1 to 4 shall not apply to tenancy relationships governing residential premises in the sense as defined by section 549 (2) number 3, nor do they apply to the cases provided for by section 575 of the Civil Code (Bürgerliches Gesetzbuch, BGB). Should a tenancy relationship in the sense as defined by section 575 of the Civil Code be terminated without prior notice, the period for vacating the premises may be granted at the longest until the time contractually agreed as the end of the tenancy relationship.
Section 795 Application of the general regulations to additional, enforceable legal documents
Unless sections 795a to 800 provide otherwise, the stipulations of sections 724 to 793 shall apply mutatis mutandis to compulsory enforcement based on the enforceable deeds of title mentioned in section 794. Where the enforceable deeds of title are based on judgments that are provisionally enforceable only against provision of security, section 720a shall apply mutatis mutandis to compulsory enforcement based on the enforceable deeds of title mentioned in section 794 (1) number 2. Additionally, sections 1093 to 1096 shall apply to compulsory enforcement based on European orders for payment that have been declared enforceable.
Section 795a Compulsory enforcement based on a cost-assessment order
Compulsory enforcement based on a cost-assessment order that has been included in the judgment pursuant to section 105 shall be pursued based on an enforceable execution copy of the judgment; no court certificate of enforceability need be issued for the court order assessing the costs.
Section 795b Declaration of enforceability of the court settlement
In the case of settlements concluded before a German court (section 794 (1) number 1), the effectiveness of which depends exclusively on an event occurring that has been set out in the file on the proceedings, the court certificate of enforceability shall be issued by the records clerk of the court registry of the court of first instance and, where the legal dispute is pending with a court of higher instance, by the records clerk of the registry of that court.
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Section 796 Compulsory enforcement based on writs of execution
(1) Writs of execution shall require a court certificate of enforceability only if compulsory enforcement is to be pursued on behalf of another creditor than the one designated in the writ of execution, or against another debtor than the one designated in the writ of execution. (2) Objections concerning the claim as such shall be admissible only insofar as the grounds on which they are based arose after service of the writ of execution and can no longer be asserted by entering a protest. (3) That court shall have jurisdiction that would have had jurisdiction for a decision in the litigation for actions brought for the issuance of a court certificate of enforceability, as well as for actions by which objections are asserted that concern the claim as such, or by which the occurrence of the prerequisite for the issuance of the court certificate of enforceability is disputed, which was assumed as having been proven when such court certificate was issued.
Section 796a Prerequisites for the settlement reached among attorneys to be declared enforceable
(1) A settlement reached by attorneys on behalf of the parties they represent, upon having been correspondingly authorised, shall be declared enforceable, upon corresponding application being made by a party, if the debtor has subjected himself in such settlement to immediate compulsory enforcement and the settlement has been deposited, specifying the date on which it was reached, with a local court (Amtsgericht, AG) in the district of which one of the parties had its general venue at the time the settlement was reached. (2) Subsection (1) shall not apply should the settlement be directed at the issuance of a declaration of intent or should it concern the existence of a tenancy relationship for residential premises. (3) The declaration of enforceability shall be refused to be issued if the settlement is invalid or if its recognition would violate public order.
Section 796b Declaration of enforceability by the court hearing the case
(1) That court as the court hearing the case shall be competent for the declaration of enforceability pursuant to section 796a (1) that would have had jurisdiction for the assertion before the court of the claim to be enforced. (2) The opponent is to be heard prior to the decision being delivered on the petition for a declaration of enforceability. The decision is delivered by a court order. The decision is incontestable.
Section 796c Declaration of enforceability by a notary
(1) Furthermore, a notary who has his official residence in the district of a court that has jurisdiction pursuant to section 796a (1) may keep a settlement document safe and declare it enforceable, provided that the parties consent to his doing so. Sections 796a and 796b shall apply mutatis mutandis. (2) Insofar as the notary refuses to issue a declaration of enforceability, he shall provide the grounds on which his decision is based. Such refusal by the notary may be contested by filing a petition for a court decision to be taken with the court that has jurisdiction pursuant to section 796b (1).
Section 797 Procedure pursued in the case of enforceable records or documents
(1) The enforceable execution copy of court records or documents will be issued by the records clerk of the registry of the court in the safekeeping of which the record or document has remained.
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(2) The enforceable execution copy of notarial records or documents will be issued by the notary in whose safekeeping the record or document has remained. Should the record or document have remained in the safekeeping of a public authority, the latter is to issue the enforceable execution copy. (3) The decision regarding objections that concern the admissibility of the court certificate of enforceability and the admissibility of issuing a further enforceable execution copy will be taken, where court records or documents are involved, by the court in the safekeeping of which the record or document has remained, and, where notarial records or documents are involved, by that local court (Amtsgericht, AG) in the district of which the notary in the safekeeping of whom the record or document has remained has his official residence, or in the district of which the public authority in the safekeeping of which the record or document has remained has its official seat. The decision as to the issuance of a further enforceable execution copy will be taken, where court records or documents are involved, by the court in the safekeeping of which the record or document has remained, and, where notarial records or documents are involved, by the notary in the safekeeping of whom the record or document has remained, or, if the record or document has remained in the safekeeping of a public authority, by that local court (Amtsgericht, AG) in the district of which said public authority has its official seat. (4) The limiting rule set out in section 767 (2) is not to be applied to the assertion of objections concerning the claim as such. (5) That court with which the debtor has his general jurisdiction in Germany, and otherwise that court with which an action may be brought against the debtor pursuant to section 23, shall have jurisdiction for actions brought for the issuance of a court certificate of enforceability, or for actions by which the objections concerning the claim as such are asserted, or by which the occurrence of the prerequisite for the issuance of the court certificate of enforceability is disputed. (6) Subsections (2) to (5) shall apply mutatis mutandis to orders pursuant to section 796c.
Section 797a Procedure pursued in the case of settlements being reached before a dispute-
resolution entity (1) In the case of settlements having been reached before dispute resolution entities of the type designated in section 794 (1) number 1, the records clerk of the court registry of that local court (Amtsgericht, AG) shall issue the certificate of enforceability in the district of which the dispute-resolution entity has its seat. (2) The court designated in subsection (1) shall decide on objections concerning the admissibility of a court certificate of enforceability. (3) Section 797 (5) shall apply mutatis mutandis. (4) The Land department of justice (Landesjustizverwaltung) may authorise the chairpersons of dispute resolution entities to issue certificates of enforceability for settlements that have been reached before the dispute-resolution entity. This authorisation shall not extend to the cases provided for by section 726 (1), sections 727 to 729, and section 733. The court designated in subsection (1) shall decide on objections concerning the admissibility of a certificate of enforceability.
Section 798 Waiting period
Compulsory enforcement based on a cost-assessment order that has not been set out on the judgment, based on orders pursuant to section 794 (1) number 4b as well as based on the records or documents recorded pursuant to section 794 (1) number 5 may be begun only if the enforceable deed of title has been served at least two (2) weeks previously.
Section 798a (repealed)
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Section 799 Enforceable record or document in the case of legal succession
Insofar as the owner of real estate encumbered by a mortgage, a charge on land, or an annuity charge on land has subjected himself to immediate compulsory enforcement in a record or document recorded pursuant to section 794 (1) number 5, and an enforceable execution copy has been issued to the creditor’s successor in title, then wherever the successor in title has been entered in the land register as creditor, no service need be performed of the public record or document, or publicly certified record or document, that proves the legal succession.
Section 799a Liability for damages where other creditors are pursuing enforcement based on
records or documents In cases in which the owner of real estate has subjected himself to immediate compulsory enforcement with a view to a mortgage or a charge on land in a record or document recorded pursuant to section 794 (1) number 5, and a creditor other than the creditor designated in the record or document is pursuing the enforcement, then this other creditor shall be under obligation, to the extent the enforcement based on the record or document is declared inadmissible, to compensate the debtor for the damages the latter has suffered by the enforcement based on the record or document, or by his efforts made in order to avert the enforcement. The first sentence shall apply mutatis mutandis where the debtor has subjected himself to immediate enforcement against his property regarding the claims that were secured by the charge on real property, or for the claim based on an acknowledgment of debt serving the same purpose.
Section 800 Enforceable record or document against the respective owner of real estate
(1) The owner may subject himself to immediate compulsory enforcement in a record or document recorded pursuant to section 794 (1) number 5 with a view to a mortgage, a charge on land, or an annuity charge on land in such manner that compulsory enforcement based on the record or document is to be admissible against the respective owner of the real estate. In such event, the subjection to immediate compulsory enforcement must be entered in the land register. (2) If compulsory enforcement is pursued against a later owner who is entered in the land register, it is not necessary to serve the public record or document, or publicly certified record or document, proving the acquisition of ownership. (3) Should immediate compulsory enforcement be admissible against the respective owner, that court shall have jurisdiction for the actions designated in section 797 (5) in the district of which the real estate is situate.
Section 800a Enforceable record or document in the case of a maritime mortgage
(1) The stipulations of sections 799 and 800 shall apply mutatis mutandis to registered ships and ships under construction encumbered by a maritime mortgage. (2) Where immediate compulsory enforcement against the respective owner is admissible, that court shall have jurisdiction for the actions designated in section 797 (5) in the district of which the register for the ship or the ship under construction is being kept.
Section 801 Legal documents enforceable under Land law
(1) The legislative powers of the Länder are not prevented from admitting the compulsory enforcement by a court based on other enforceable deeds of title than those designated in sections 704 and 794, nor are they prevented from establishing rules in this regard that are in derogation of the present Code as regards compulsory enforcement.
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(2) Claims may be enforced based on enforceable deeds of title governed by Land law in the sense as defined by subsection (1) in the entire territory of the Federal Republic of Germany.
Section 802 Exclusive venue
The venues directed in this Book are exclusive.
Chapter 2 Compulsory enforcement for monetary claims
Title 1 General regulations
Section 802a Principles of enforcement; general powers of the court-appointed enforcement officer (1) The court-appointed enforcement officer shall work towards ensuring that the recovery of monetary claims is effected promptly, fully, and in a cost-efficient manner. (2) By reason of the corresponding enforcement instructions and the physical handover of the enforceable execution copy, the court-appointed enforcement officer has the following powers, notwithstanding any further competences he may have:
1. To make efforts at amicably terminating the matter (section 802b),
2. To obtain information from the debtor on his financial circumstances and the assets he owns (section 802c),
3. To obtain information from third parties on the debtor’s financial circumstances and the assets he owns (section 802l),
4. To pursue the attachment and realisation of physical objects,
5. To give notice of imminent attachment of a debt (section 845); this shall not require the prior issuance of an enforceable execution copy, nor shall it require the service of the enforceable deed of title.
The measures are to be designated in the enforcement instructions; however, the measure pursuant to number 1 of the first sentence is to be so designated only if the instructions are limited thereto.
Section 802b Amicable termination of the matter; deferment of enforcement in the event of a
payment agreement (1) In all situations of the proceedings, the court-appointed enforcement officer is to endeavour to achieve an amicable termination of the matter. (2) Where the creditor has not ruled out a payment agreement, the court-appointed enforcement officer may grant to the debtor a period within which payment is to be made, or may allow the debt to be redeemed by partial performance (payment in instalments), provided the debtor demonstrates in a satisfactory way that he will be able to make the payments, which are to be determined in terms of their amount and timing. Should a payment plan be determined in accordance with the first sentence, the enforcement shall be deferred. The redemption is to be completed within twelve (12) months. (3) The court-appointed enforcement officer shall inform the creditor without undue delay of the payment plan determined pursuant to subsection (2) and of the deferment of enforcement. Where the creditor opposes the payment plan without undue delay, the payment plan shall be rendered invalid upon the debtor being notified of this fact; concurrently, the deferment of enforcement shall end. Should the debtor be in arrears for
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longer than two weeks with a payment determined, in its entirety or with a part of it, this shall have the same effect.
Section 802c Information from the debtor on his assets
(1) For purposes of enforcing a monetary claim, the debtor is under obligation to provide information to the court-appointed enforcement officer, at the latter’s demand, on his financial circumstances and the assets he owns, subject to the stipulations set out hereinbelow, and to provide his name at birth as well as his date and place of birth. Where the judgment debtor is a legal person or an association of persons, he is to provide the name, the number of the registry folio on which he is entered in the Commercial Register, and his registered seat. (2) In providing such information, the debtor is to cite all assets belonging to him. Where he lists receivables, the reasons and the evidence proving his claim are to be designated. Furthermore, the debtor is to provide information on the following:
1. The dispositions the debtor has made against payment to a person with whom he has a close relationship (section 138 of the Insolvency Statute (Insolvenzordnung, InsO)) in the course of the last two (2) years prior to the date set out in section 802f (1) and up to the date on which he provided information on his assets;
2. The performance the debtor has made without payment in the last four (4) years prior to the date pursuant to section 802f (1) and up to the date on which he provided information on his assets, provided that this does not concern usual gifts made on certain occasions that are of little value.
Objects that are obviously not subject to attachment pursuant to section 811 (1) nos. 1 and 2 need not be listed unless attachment with substitution is an available option. (3) The debtor is to record a statutory declaration in lieu of an oath, stating that he has correctly and fully made the statements according to subsections (1) and (2) to the best of his knowledge and belief. The stipulations of sections 478 to 480 and of section 483 shall apply mutatis mutandis.
Section 802d New information on assets
(1) A debtor who, in the course of the last two years, has provided information on his financial circumstances and the assets he owns pursuant to section 802c of the present Code or pursuant to section 284 of the Fiscal Code (Abgabenordnung, AO) shall be obligated to once again provide such information only if a creditor satisfactorily demonstrates facts allowing the conclusion to be drawn that there has been a significant change to the debtor’s financial circumstances and in the assets he owns. Alternatively, the court- appointed enforcement officer shall forward to the creditor a hard-copy printout of the last schedule of assets that has been provided. The creditor may use the data obtained solely for purposes of enforcement and shall delete the data upon such purpose having been achieved; the enforcement officer is to indicate this fact to the creditor. The enforcement officer shall notify the debtor that a hard-copy printout has been forwarded in accordance with the second sentence and shall instruct him that he may potentially entered in the list of debtors (section 882c). (2) Instead of having a hard-copy printout forwarded, the creditor may, upon filing a corresponding application, have the schedule of assets transmitted as an electronic document, provided that this has been furnished with a qualified electronic signature and is protected against its becoming known to unauthorised parties.
Section 802e Competence
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(1) The court-appointed enforcement officer of the local court (Amtsgericht, AG) in the district of which the debtor has his place of residence or, absent such place of residence, his place of abode at the time the instructions are issued to the court-appointed enforcement officer, shall be the enforcement officer competent to take the information on the debtor’s financial circumstances and assets and to administer the statutory declaration in lieu of an oath. (2) Should the court-appointed enforcement officer first contacted not be competent, he shall forward the matter, upon the creditor having filed a corresponding application, to the competent enforcement officer.
Section 802f Proceedings for taking the information on the debtor’s assets
(1) By way of taking the information on the debtor’s financial circumstances and assets, the court-appointed enforcement officer shall set a deadline of two weeks, within which the debtor is to settle the claim. For the case that the claim has not been fully settled following the expiry of the deadline, the enforcement officer shall concurrently arrange a meeting for a date shortly after expiry of the deadline, on which the information on the debtor’s financial circumstances and assets is to be provided, and shall summon the debtor to his offices for such meeting. The debtor is to produce the documentation required for providing information on his financial circumstances and assets at the meeting. (2) In derogation from subsection (1), the court-appointed enforcement officer may determine that the debtor is to provide the information on his financial circumstances and assets in his own residence. The debtor may oppose this determination vis-à-vis the enforcement officer, and must do so within one week. In all other cases, the debtor shall be deemed to have failed to appear at the meeting in violation of his obligations should the debtor fail to provide the information on his financial circumstances and assets for reasons for which he is responsible. (3) The debtor is to be instructed, with the summons to the meeting, regarding the statements to be made pursuant to section 802c (2). The debtor is to be instructed as regards his rights and obligations pursuant to subsections (1) and (2), regarding the consequences of a failure to appear at the meeting without excuse, or regarding a violation of his obligation to provide information, and about the possibility of information being obtained from third parties pursuant to section 802l as well as his potential entry in the list of debtors upon his providing information on his assets pursuant to section 882c. (4) Demands for payment, summonses, determinations, and instructions pursuant to subsections (1) through (3) are to be served on the debtor, even in those cases in which the debtor has retained an attorney of record; no notice need be sent to the attorney of record. The appointed date as determined by the court shall be communicated to the creditor subject to the stipulations of section 357 (2). (5) The court-appointed enforcement officer shall prepare a list containing the statements required pursuant to section 802c subsections (1) and (2) (schedule of assets), this being an electronic document. These statements are to be read to the debtor prior to his recording the declaration pursuant to section 802c (3), or they are to be reproduced on a screen for his inspection. Should the debtor so demand, a hard-copy printout shall be issued to him. (6) The court-appointed enforcement officer shall lodge the schedule of assets with the central court responsible for execution pursuant to section 802k (1) and shall forward a hard- copy printout to the creditor without undue delay. The hard-copy printout must contain the note that it corresponds to the content set out in the schedule of assets; section 802d subsection (1), third sentence, and subsection (2) shall apply mutatis mutandis.
Section 802g Coercive detention
(1) Should the creditor file a corresponding application, the court shall issue a warrant of arrest against a debtor who has failed to appear at the meeting scheduled for the provision of the information on his financial circumstances and assets without having excused himself, or who refuses to provide the information on his financial circumstances and assets pursuant
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to section 802c without citing any grounds, in order to force the debtor to provide such information. The warrant for arrest is to designate the creditor, the debtor, and the grounds for the arrest. The warrant for arrest need not be served prior to being executed. (2) The debtor shall be arrested by a court-appointed enforcement officer. A certified copy of the warrant for arrest is to be physically submitted to the debtor at the time of his arrest.
Section 802h Inadmissibility of the execution of the arrest
(1) The execution of the warrant for arrest is not an available remedy if two (2) years have lapsed since the date on which the warrant for arrest was issued by the court. (2) Any arrest ordered against a debtor whose health would be subjected to an imminent and significant risk by an execution of the arrest may not be executed for as long as this state of the debtor’s health continues.
Section 802i Information on the assets of a debtor in arrest
(1) A debtor who has been arrested may demand at any time that the court-appointed enforcement officer of the local court (Amtsgericht, AG), in the district of which he is being detained, take the information on his financial circumstances and assets. This demand is to be complied with without undue delay; section 802f (5) shall apply mutatis mutandis. Should the creditor file a corresponding application, his attendance shall be enabled, provided that his attendance does not result in delaying the taking of the information. (2) After the debtor has provided the information on his assets, he shall be released from detention. Section 802f subsections (5) and (6) shall apply mutatis mutandis. (3) Should the debtor be unable to make complete statements because he does not have the required documents at hand, the court-appointed enforcement officer may appoint a new date and may suspend the execution of the warrant for arrest until that time. Section 802f shall apply mutatis mutandis; no deadline for payment need be set.
Section 802j Duration of arrest, renewed arrest
(1) The arrest may not be ordered for a period longer than six (6) months. Following expiry of the six (6) months, the debtor shall be released from arrest ex officio. (2) Where a debtor is released from arrest upon the creditor having filed a corresponding petition, without the debtor having contributed to this, no renewed arrest shall be ordered against the debtor if the same creditor files a corresponding application. (3) If an arrest of six (6) months has been executed against a debtor due to his refusal to provide the information on his financial circumstances and assets, the provision of such information on his financial circumstances and assets may be imposed on him by ordering an arrest in the course of the subsequent two (2) years only subject to the pre-requisites of section 802d, even if a corresponding petition is filed by another creditor.
Section 802k Central administration of schedules of assets
(1) Schedules of assets that are to be deposited pursuant to section 802f (6) of this Act or pursuant to section 284 (7), fourth sentence, of the Fiscal Code (Abgabenordnung, AO) shall be maintained in electronic form in each Land by a central execution court. It is possible to inspect the schedules of assets via a central, internet-based search in all databases of the Länder, and to retrieve such schedules of assets. The same applies to schedules of assets that were established based on a provision of federal or Land law equivalent to section 284 subsections (1) to (7) of the Fiscal Code, insofar as this provision orders their deposit. A schedule of assets according to the first sentence or second sentence is to be deleted upon the expiry of two (2) years from the date on which the information was provided, or upon the receipt of a new schedule of assets.
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(2) The court-appointed enforcement officers may retrieve copies of the schedules of assets maintained by the central execution courts pursuant to subsection (1) for purposes of execution. Those enforcement authorities shall be equivalent to court-appointed enforcement officers that
1. May demand information on assets owned pursuant to section 284 of the Fiscal Code (Abgabenordnung, AO),
2. Are authorised by federal or Land law to demand that the debtor provide information on the assets he owns, where this authority to obtain information has been ruled out by the establishment of a schedule of assets to be deposited pursuant to subsection (1), or
3. Are authorised by federal or Land law to demand that the debtor provide information to the court-appointed enforcement officer on the assets he owns pursuant to section 802c.
Furthermore, the courts responsible for execution, insolvency courts, and courts maintaining registers as well as the law enforcement agencies are authorised to inspect these schedules to the extent required by the fulfilment of the tasks incumbent on them. (3) The Land governments shall determine by statutory instrument which court is to perform the tasks of the central execution court pursuant to subsection (1). They may confer this authority upon the Land departments of justice. The central execution court pursuant to subsection (1) may have other agencies perform the data processing on its behalf; the respectively applicable stipulations of data protection law concerning the processing of personal data on behalf of others are to be applied. (4) The Federal Ministry of Justice is authorised to provide for the details of the content, form, recording, transmission, maintenance, and deletion of the schedules of assets pursuant to section 802f (5) of this Act and pursuant to section 284 subsection (7) of the Fiscal Code (Abgabenordnung, AO) or equivalent provisions in the sense of subsection (1), second sentence, and also for the details of the inspection, in particular by automated retrieval processes, such provision being subject to approval by the Bundesrat and being made by statutory instrument. The statutory instrument is to establish suitable rules for safeguarding data protection and data security. In particular, it is to be ensured that the schedules of assets:
1. Are protected against unauthorised third parties obtaining knowledge in the course of their being transmitted to the central execution court pursuant to subsection (1), as well as during the transfer to the other agencies pursuant to subsection (3), third sentence;
2. Are reproduced as a whole and completely;
3. May be allocated at any time to their source; and
4. May be retrieved only by registered users, with every retrieval being recorded.
Section 802l Information rights of the court-appointed enforcement officer
(1) Where the debtor does not comply with his obligation to provide information on his financial circumstances and the assets he owns, or if it is foreseeable that the enforcement against the assets listed therein will not achieve the full satisfaction of the creditor, the court- appointed enforcement officer may
1. Obtain from the statutory pension insurance funds the name, the first names, or the company name of the debtor, as well as the addresses of the current employers in
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whose services the debtor is working under an employment relationship entailing the obligation to make compulsory social insurance contributions;
2. Request that the Federal Central Tax Office (Bundeszentralamt für Steuern) retrieve the data designated in Section 93b (1) of the Fiscal Code (Abgabenordnung, AO) from credit institutions (section 93 (8) of the Fiscal Code);
3. Obtain from the Federal Motor Transport Authority (Kraftfahrtbundesamt) the data on the vehicle and the vehicle keeper pursuant to section 33 (1) of the Road Traffic Act (Strassenverkehrsgesetz, StVG) for any vehicle regarding which the debtor has been entered as the vehicle keeper.
Obtaining or requesting information and data shall be permissible only insofar as this is required for enforcement purposes and the claims to be enforced amount to at least 500 euros; the costs of compulsory enforcement and ancillary claims shall be included in computing this amount only if they alone are the subject matter of the enforcement instructions. (2) The court-appointed enforcement officer shall delete or block, without undue delay, any data not required for enforcement purposes. A record is to be prepared of the deletion. (3) The court-appointed enforcement officer shall inform the creditor without undue delay of the results of his efforts at obtaining data or of his request pursuant to subsection (1), observing the stipulations of subsection (2), and shall inform the debtor within four (4) weeks of receiving such data. Section 802d subsection (1), third sentence, and subsection (2) shall apply mutatis mutandis.
Title 2 Compulsory enforcement against movable property
Subtitle 1 General regulations
Section 803 Attachment
(1) Compulsory enforcement against movable property is effected by attachment. It may not be extended beyond what is required to satisfy the creditor and to cover the costs of compulsory enforcement. (2) No attachment shall be effected if it is not to be expected that the realisation of the objects to be attached will not achieve any surplus in excess of the costs of compulsory enforcement.
Section 804 Security right of a creditor
(1) By the attachment, the creditor acquires a security right to the object so attached. (2) The security right grants the same rights to the creditor, in his relationship to other creditors, as are entailed by pledged collateral acquired by way of an agreement; the security right takes precedence before rights of pledge and preferential rights, which shall not have equivalent status with pledged collateral in the event of insolvency proceedings being opened. (3) Any security right established by an earlier attachment shall take precedence before a security right established by a subsequent attachment.
Section 805 Action for preferential satisfaction
(1) A third party may not oppose the attachment of an object, should that third party not have possession of that object, based on a security right or preferential right; however, it may assert its claim for preferential satisfaction out of the proceeds by filing a corresponding court
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action, and may do so without considering the fact whether or not its claim is due for payment. (2) The action is to be filed with the court responsible for execution and, where the local courts (Amtsgerichte, AG) do not have jurisdiction for the subject matter of the litigation, the action is to be filed with the regional court (Landgericht, LG) in the district of which the execution court has its seat. (3) Should the action be directed against both the creditor and the debtor, they are to be regarded as joined parties. (4) Provided the claim has been demonstrated to the satisfaction of the court, the court is to order the lodgment of the proceeds. In this context, the stipulations of sections 769 and 770 shall apply mutatis mutandis.
Section 806 No warranty where an attached object is disposed of
Where an object is disposed of based on the attachment, the party acquiring that object shall have no claim to warranty for any defects of title or any material defect of the object being disposed of.
Section 806a Notices from the court-appointed enforcement officer and interviews
(1) If the court-appointed enforcement officer becomes aware, on the occasion of the compulsory enforcement, in the course of interviewing the debtor or as a result of his inspection of the documents, that the debtor has monetary claims against third parties, and if it is not possible to effect attachment, or if it is foreseeable that the attachment so effected will not achieve the full satisfaction of the creditor, he shall inform the creditor of the names and addresses of the third-party debtors, providing the basis for the claims and the securities established for them. (2) If the court-appointed enforcement officer does not find the debtor at his residence and if it is not possible to effect attachment, or if it is foreseeable that the attachment so effected will not achieve the full satisfaction of the creditor, he may make inquiries with the adult persons belonging to the debtor’s household regarding the debtor’s employer. Said persons are not under obligation to provide this information, and the court-appointed enforcement officer is to draw their attention to the fact that this information is voluntary. The court- appointed enforcement officer shall inform the creditor of the insights he has gained.
Section 806b (repealed)
Section 807 Taking the information on the debtor’s financial circumstances and assets following
efforts to attach assets (1) Where the creditor has applied to have assets of the debtor attached and
1. The debtor has refused to consent to the search (section 758) or
2. The efforts to attach assets have obtained the result that the attachment foreseeably will not achieve the full satisfaction of the creditor,
the court-appointed enforcement officer may, in derogation from the stipulations of section 802f, take the information on the debtor’s financial circumstances and assets immediately, should the creditor have filed a corresponding application. Section 802f subsections (5) and (6) shall apply. (2) The debtor may oppose the immediate taking of information. In such event, the court- appointed enforcement officer shall proceed pursuant to section 802f; no deadline for payment need be set.
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Subtitle 2 Compulsory enforcement against physical objects
Section 808 Attachment with the debtor
(1) The attachment of the physical objects in the custody and control of the debtor is effected by the court-appointed enforcement officer taking possession of them. (2) Objects other than money, valuables, and securities are to be left in the custody and control of the debtor unless doing so jeopardises the satisfaction of the creditor. Should the objects be left in the custody and control of the debtor, their attachment will be valid only if it is made visible by applying seals or using other means. (3) The court-appointed enforcement officer is to inform the debtor of the attachment having been effected.
Section 809 Attachment with the creditor or with third parties
The above rules shall apply mutatis mutandis to the attachment of objects in the custody and control of the creditor or of a third party who is prepared to surrender them.
Section 810 Attachment of unharvested fruits
(1) Fruits that have not yet been harvested may be attached as long as their attachment has not been effected by way of compulsory enforcement against immovable assets. The attachment may not be effected earlier than one (1) month prior to the time at which the fruit is usually ripe. (2) A creditor entitled to satisfaction out of the plot of real estate may oppose the attachment subject to the provisions of section 771 unless the attachment has been effected for a claim taking precedence in the compulsory enforcement effected against the plot of real estate.
Section 811 Objects exempted from attachment
(1) The following objects are not subject to attachment:
1. Objects serving the debtor’s personal use or his household, in particular items of clothing, linen goods, beds, household and kitchen appliances insofar as the debtor requires them for a modest lifestyle and housekeeping needs in line with his professional activities and his indebtedness; furthermore: summer houses, garden houses, and similar facilities serving residential purposes that are subject to compulsory enforcement against movable property and that the debtor or his family require as permanent residential accommodations;
2. The foodstuff, fuel for heating and cooking, and lighting means required for four (4) weeks by the debtor, his family, the members of his household serving as household help or, to the extent no such supplies are given for this period of time and their procurement by other means is not assured, the amount of money required to so procure them;
3. Small animals in a limited number as well as one (1) dairy cow or, at the selection of the debtor, instead of the dairy cow a total of two (2) pigs, goats, or sheep if these animals are required for the nourishment of the debtor, his family, the members of his household serving as household help, in his agricultural business or in his commercial business; furthermore the supplies required for four (4) weeks of feedstuffs and bedding or, to the extent no such supplies are given for this period of time and their procurement by other means is not assured, the amount of money required to so procure them;
4. Where the debtor operates an agricultural business: the equipment and livestock required for the business operation, as well as the necessary fertiliser and the
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agricultural products to the extent they are required to secure the maintenance of the debtor, his family, and his employees, or to maintain the agricultural business until the next harvest of the same or similar products;
4a. Where the debtor is an employee in an agricultural business: the goods delivered to him as remuneration in kind, to the extent the debtor requires them in order to maintain himself and his family;
5. Where the debtor earns his maintenance using his intellectual or physical capacities or other personal performance: the objects required to continue pursuing these economic activities;
6. Concerning the widows and heirs of the persons designated in number 5 above, provided they continue to pursue the economic activities on their own account by a representative: the objects required to continue pursuing these economic activities;
7. Service clothing and service equipment insofar as they are determined for use by the debtors; where civil servants, clerics, attorneys, notaries, medical practitioners, and midwives are concerned: the objects they require to pursue their profession including appropriate clothing;
8. Where the debtor draws recurrent earnings of the type designated in sections 850 to 850b of the present Code or in section 54 subsections (3) to (5) of the First Book of the Social Code (Sozialgesetzbuch), or where the debtor draws ongoing child benefits: an amount of money corresponding to the part of the earnings that is not subject to attachment for the time from the attachment until the next payment date;
9. The appliances, containers, and goods indispensable for operating a pharmacy;
10. The books determined for the debtor’s use and that of his family in church or in school or in any other institution of instruction, or for home devotionals;
11. The household records and business account ledgers, family papers as well as any wedding bands, decorations, and badges of honour;
12. Artificial limbs, glasses and other aids necessary to alleviate physical handicaps insofar as these objects are intended for use by the debtor and his family;
13. The objects determined for direct use at an interment. (2) An object designated in subsection (1) numbers 1, 4, 5 to 7 may be attached where the seller enforces his monetary claim under the sale that has been secured by a reservation of title. Proof of the reservation of title having been agreed is to be provided by records or documents.
Section 811a Attachment with substitution
(1) An object exempted from attachment pursuant to section 811 (1) numbers 1, 5 and 6 may admissibly be attached notwithstanding its exemption if, prior to taking the object, the creditor permits the debtor to use a replacement object serving the purpose protected by the exemption, or gives him the amount of money required to procure such replacement; should it not be possible for the creditor to obtain such replacement in due time, or where this cannot be reasonably expected of him, the attachment may be admitted subject to the proviso that the debtor is given the amount of money required to procure the replacement out of the proceeds of the execution (attachment with substitution). (2) The court responsible for execution shall decide by court order on the admissibility of the attachment with substitution, upon the creditor filing a corresponding petition. The court is to admit such attachment with substitution only if this is reasonable under the circumstances given at that time, and in particular if it is to be expected that the proceeds of the execution
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will be significantly higher than the value of the replacement object. The court shall assess the value of a replacement object offered by the creditor or the amount of money required to obtain such replacement. In the case of attachment with substitution being performed pursuant to subsection (1), first clause of the sentence, the amount assessed is to be reimbursed to the creditor out of the proceeds of the execution; this shall form part of the costs of compulsory enforcement. (3) The amount of money given to the debtor is exempted from attachment. (4) In the case of attachment with substitution being effected pursuant to subsection (1), second clause of the sentence, the object attached may be taken only after the court order admitting it has become final and binding.
Section 811b Provisional attachment with substitution
(1) Insofar as no prior decision of the court has been given, a provisional attachment with substitution may admissibly be effected, provided the court can be expected to admit such provisional attachment with substitution. The court-appointed enforcement officer is to effect the attachment with substitution only if it can be expected that the proceeds of the execution will be significantly higher than the value of the replacement object. (2) The attachment is to be released if the creditor has filed a petition pursuant to section 811a (2) with the court responsible for execution, within a period of two (2) weeks after having been notified of the attachment, or if such petition has been dismissed in a final and binding judgment. (3) The notice to the creditor is to inform him that the attachment was effected as attachment with substitution and is to set out the period within which the application is to be filed, while also setting out the consequences of any failure to comply with it. (4) The physical submission of the replacement object to the debtor, or of the amount of money required to procure it, and the continuation of compulsory enforcement shall be effected at the creditor’s instructions only upon the order pursuant to section 811a (2) having been delivered. Section 811a subsection (4) shall apply mutatis mutandis.
Section 811c Domestic animals exempted from attachment
(1) Animals kept in a residential area that do not serve any economic purpose are not subject to attachment. (2) Upon a corresponding petition being filed by the creditor, the court responsible for execution shall allow an animal to be attached in light of its great value if exempting it from attachment would entail a hardship for the creditor that is not justifiable, also taking account of the concerns of the protection of animals and the debtor’s justified interests.
Section 811d Temporary attachment (without actual possession being taken)
(1) If it is to be expected that an object will become attachable in the near future, it may be attached, while, however, being left in the debtor’s custody and control. The enforcement may be continued only where the object has become attachable. (2) The attachment is to be released should the object have failed to become attachable within one (1) year.
Section 812 Attachment of household effects
Objects forming part of the customary household effects that are in use in the debtor’s household shall not be attached if their realisation would manifestly obtain proceeds that bear no relation whatsoever to the objects’ actual value.
Section 813 Appraisal
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(1) The objects attached are to be appraised regarding their usual market value. Valuables are to be appraised by an expert. The court responsible for execution may direct that an expert perform the appraisal also in other cases, provided that a corresponding petition is filed by the creditor or by the debtor. (2) If it is not possible to appraise the value of the objects attached, this is to be performed retroactively without undue delay, and the result obtained is to be recorded retroactively in the attachment record. Should the court-appointed enforcement officer keep his files electronically, the result is to be recorded in a separate electronic document. The document is to be joined to the attachment record such that it cannot be separated. (3) Where it is to be assumed that the value of the objects to be attached will be higher than 500 euros, an agricultural expert is to be involved in the attachment of fruits that have not yet been harvested, and likewise where objects of the type designated in section 811 (1) number 4 are to be attached from persons operating an agricultural business. (4) The Land department of justice (Landesjustizverwaltung) may determine that an expert is to be involved also in other cases.
Section 813a (repealed)
Section 813b (repealed)
Section 814 Sale at public auction
(1) The court-appointed enforcement officer is to offer the objects attached for sale at public auction; valuables are to be appraised by an expert prior to the auction. (2) At the election of the court-appointed enforcement officer, the public auction may be effected as:
1. An auction on site; or
2. As a generally accessible auction in the internet using an auction platform. (3) Where internet auctions pursuant to subsection (2) number 2 are concerned, the Land governments shall determine by statutory instrument:
1. The time following which the implementation of such auction is admissible;
2. The auction platform;
3. The registration of bidders for the auction, or the refusal to so register them; insofar as the registration of a bidder or the refusal to register him for an auction is based on the requirement that natural persons prove their identity; the use of the electronic identification document (section 18 of the Act on Identity Cards (Personalausweisgesetz, PAuswG)) is to be allowed for this purpose at the latest from 1 January 2013;
4. Commencement, end, and termination of the auction;
5. The auction terms and the other legal consequences of the auction, including instructions to the bidders as to the exclusion of warranty pursuant to section 806;
6. The anonymisation of the debtor’s personal information prior to their being published, and the option to so anonymise the bidders’ personal data;
7. Any other special procedures to be followed. They may confer the authorisation by statutory instrument upon the Land departments of justice (Landesjustizverwaltungen).
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Section 815 Attached cash
(1) Any attached cash is to be surrendered to the creditor. (2) Should it be demonstrated to the satisfaction of the court-appointed enforcement officer that a third party has rights to the attached cash that prevent its being disposed over, the cash is to be lodged. Compulsory enforcement is to be continued unless a decision is delivered, within a period of two (2) weeks from the date of the attachment, by the court having jurisdiction pursuant to section 771 (1), ordering the termination of compulsory enforcement. (3) Where the court-appointed enforcement officer takes away the cash from the debtor, this shall be deemed to be payment by the debtor unless such cash is to be lodged pursuant to subsection (2) or pursuant to section 720.
Section 816 Time and place of the auction
(1) The sale at auction of the objects attached may not be effected prior to the expiry of one (1) week from the date of attachment unless the creditor and the debtor agree on an earlier auction, or unless such earlier auction is required in order to avert the risk of the object to be sold at auction undergoing a significant loss in value, or in order to avoid any disproportionate costs entailed by longer storage. (2) The object shall be sold at auction in the municipality in which it was attached, or at another location in the judicial district of the court responsible for execution, unless the creditor and the debtor agree on a third location. (3) The public notice of the time and place of the auction is to include a general designation of the objects to be sold at auction. (4) The rule set out in section 1239 (1), first sentence, of the Civil Code (Bürgerliches Gesetzbuch, BGB) shall apply mutatis mutandis to the sale at auction; section 1239 (2) of the Civil Code (Bürgerliches Gesetzbuch, BGB) shall likewise apply mutatis mutandis to the sale at auction performed on site. (5) Subsections (2) and (3) shall not apply to internet auctions.
Section 817 Successful bids and delivery
(1) If the auction is performed on site, the object shall go to the highest bidder after having been called three times. Should the object be auctioned off in the internet, the winning bidder shall be that person who has made the highest bid at the time at which the auction ends, this being at least the minimum bid that is to be attained pursuant to section 817a (1), first sentence; that person shall be notified that he has won the auction. Section 156 of the Civil Code (Bürgerliches Gesetzbuch, BGB) shall apply mutatis mutandis. (2) The object so acquired may be delivered to the successful bidder only if the purchase money has been paid, or if it is paid at the time of delivery. (3) If the highest bidder has failed to demand the delivery of the object against payment of the purchase money within the period determined in the auction rules, or, absent such rules, prior to the end of the auction on that date, the object shall be auctioned off otherwise. The highest bidder shall not be admitted to make another offer; he shall be liable for any shortfall and shall not be entitled to any surplus proceeds. (4) Where the creditor is the winning bidder, he shall be released from making payment in cash insofar as the proceeds are to be used, after deduction of the costs of compulsory enforcement, to satisfy his claim, unless the debtor has been permitted to avert enforcement by providing security or by lodgment. To the extent the creditor is released from the obligation to make payment in cash, the amount shall be deemed to have been paid by the debtor to the creditor.
Section 817a Minimum bid
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(1) The object being sold at auction may go only to the bidder whose bid came in at at least half the usual market value of the object (minimum bid). The usual market value and the minimum bid are to be announced while the object is being offered for bid. (2) Should the object not be sold because the bids made are lower than the minimum set, the creditor’s security right shall continue in force. He may petition at any time that a new date be scheduled for an auction, or may petition that the court order another form of realising the attached object pursuant to section 825. If another form of realisation is directed, subsection (1) shall apply mutatis mutandis. (3) Objects made of gold or silver may not be sold to a bidder bidding less than the value of the material of the gold or silver object. Where no bid is made that would allow the object to be sold, the court-appointed enforcement officer may conclude a private sale at the price that is equivalent to the value of the gold or silver, but not lower than half the usual market value.
Section 818 Discontinuation of the auction
The auction will be closed as soon as the proceeds suffice to satisfy the creditor and to cover the costs of compulsory enforcement.
Section 819 Effect of accepting the proceeds
The possession taken by the court-appointed enforcement officer of the proceeds shall be deemed to be a payment made by the debtor unless the debtor has been permitted to avert the enforcement by providing security or lodgment.
Section 820 (repealed)
Section 821 Realisation of securities
If attached securities have an exchange price or market price, they are to be sold by the court-appointed enforcement officer directly concluding a direct sale at the then current price and, where they do not have such a price, they are to be auctioned off in accordance with the general provisions.
Section 822 Transfer of registered securities
Should securities be made out to bearers, the court responsible for execution may authorise the enforcement officer to have the securities made out in the name of the buyer and to make the declarations required in this regard in the debtor’s stead.
Section 823 Bearer instruments that are withdrawn from circulation
If a bearer instrument is withdrawn from circulation by being registered in a particular name, or in any other way, the court responsible for execution may authorise the enforcement officer to obtain their return to circulation and to make the declarations required in this regard in the debtor’s stead.
Section 824 Realisation of fruits that have not yet been harvested
Fruits that have been attached but have not yet been harvested may be sold at auction only after they have become ready for harvest (ripe). The auction may be implemented before or after the fruits have been harvested; in the latter case, the court-appointed enforcement officer is to have the harvest performed.
Section 825 Other form of realisation
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(1) Upon the creditor or the debtor filing a corresponding petition, the court-appointed enforcement officer may realise an attached object in another manner or at another location than has been determined in the above sections. The court-appointed enforcement officer is to inform the respondent of the realisation intended. He may not realise the object prior to the expiry of two (2) weeks following the service of the information notice unless the respondent has agreed to this being done. (2) Upon the creditor or the debtor filing a corresponding petition, the court responsible for execution may direct an attached object to be sold at auction by another person than the court-appointed enforcement officer.
Section 826 Subordinate attachment
(1) In order to attach objects that have already been attached, it shall suffice to record the declaration by the court-appointed enforcement officer that he is attaching the objects on behalf of his principal. (2) Where the first attachment has been performed by a different court-appointed enforcement officer, a copy of the record is to be sent to him. (3) The debtor is to be informed of the further attachments.
Section 827 Procedure pursued in the case of several attachments
(1) By law, the tasks conferred on the second creditor shall devolve to the court-appointed enforcement officer who has effected the first attachment unless the court responsible for execution instructs, upon a corresponding petition being filed by a creditor or by the debtor, that the tasks of that first enforcement officer are to be assumed by a different enforcement officer. The sale at auction shall be performed on behalf of all creditors involved. (2) Insofar as the proceeds obtained do not suffice to cover the claims, and the creditor on whose behalf the second or a later attachment was performed demands that such proceeds be distributed differently than in the sequence in which the attachments were made, without the other creditors involved consenting to this, the court-appointed enforcement officer is to notify the execution court of the overall factual situation and is to lodge the proceeds obtained. The documents relevant to the proceedings are to be attached to this notification. (3) Where the attachment was performed for several creditors simultaneously, the same procedure is to be followed.
Subtitle 3 Compulsory enforcement against claims and other property rights
Section 828 Jurisdiction of the execution court
(1) The court responsible for execution shall take the court actions that concern compulsory enforcement against claims and other property rights. (2) The execution court shall be that local court (Amtsgericht, AG) with which the debtor has his general venue in Germany, and in all other cases the local court with which an action may be filed against the debtor pursuant to section 23. (3) If the court before which the action has initially been brought does not have jurisdiction, it shall relinquish jurisdiction to the competent court upon the creditor filing a corresponding petition. The relinquishment shall not be binding upon that court.
Section 829 Attachment of a monetary claim
(1) In cases in which a monetary claim is to be attached, the court is to prohibit the third- party debtor from making payment to the debtor. Concurrently, the court is to issue an order to the debtor that he is to refrain from any disposition over the claim, in particular its collection. The attachment of several monetary claims against various third-party debtors is to be ordered by a uniform court order, upon the creditor filing a corresponding petition,
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provided that this appears to be mandated for the enforcement purpose and further provided that there is no reason to assume that interests warranting protection of the third-party debtor would contravene this. (2) The creditor is to have the court order served on the third-party debtor. The court- appointed enforcement officer is to immediately serve the order, together with a copy of the record of service, on the debtor, unless service by publication is required. Where a debtor is located abroad, the order shall not be served and instead shall be mailed. (3) Upon the order being served on the third-party debtor, the attachment is to be deemed as having been effected. (4) The Federal Ministry of Justice is authorised to introduce forms serving the petition for the court to issue an order of attachment and transfer, such forms being subject to approval by the Bundesrat and being made by statutory instrument. To the extent forms have been introduced in accordance with the first sentence, the petitioner must use them. Different types of forms may be introduced for proceedings before courts that process these matters electronically, and for proceedings before courts that do not process these matters electronically.
Section 829a Simplified petition for enforcement in the case of writs of execution
(1) In cases in which an electronic petition is filed for compulsory enforcement under a writ of execution, which does not require a court certificate of enforceability, forwarding the executed copy of the writ of execution may be dispensed with in the case of a monetary claim being attached and transferred (sections 829, 835), provided that
1. The monetary claim due that is set out in the writ of execution does not amount to more than 5,000 euros; the costs of compulsory enforcement and ancillary claims shall be included in computing the amount of the claim only if they alone are the subject matter of the petition for enforcement;
2. There are no stipulations requiring the submission of any records other than the executed copy of the writ of execution;
3. The creditor attaches to his petition, as an electronic document, a copy of the writ of execution along with a certificate of service, and
4. The creditor assures that he has at hand an executed copy of the writ of execution and a certificate of service and the claim continues to exist in the amount set out in the petition for enforcement.
Where the costs of the compulsory enforcement are to be executed, a reviewable itemisation of the costs and the corresponding vouchers are to be attached to the petition as electronic documents in addition to the documents listed in number 3 of the first sentence. (2) Should the court have doubts as to an executed copy of the writ of execution existing or the other pre-requisites for enforcement having been met, it shall inform the creditor of this fact and shall perform the compulsory enforcement only once the creditor has forwarded the executed copy of the writ of execution or has proven that the other pre-requisites for the enforcement have been met. (3) Section 130a (2) shall remain unaffected hereby.
Section 830 Attachment of a mortgage claim
(1) In order to attach a claim for which a mortgage has been established, the physical submission of the mortgage deed to the creditor is another prerequisite in addition to an attachment order being issued. Insofar as the physical submission is effected by way of compulsory enforcement, this shall be deemed to have been performed by the court- appointed enforcement officer taking away the deed for the purpose of surrendering it to the
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creditor. Where handing over the mortgage deed is ruled out, its attachment shall be entered in the land register; such entry shall be made on the basis of the attachment order. (2) If the attachment order is served upon the third-party debtor prior to the physical submission of the mortgage deed or prior to the attachment being entered in the land register, the attachment shall be deemed to have been effected upon service. (3) These rules are not to be applied in cases in which the attachment concerns claims to the performance designated in section 1159 of the Civil Code (Bürgerliches Gesetzbuch, BGB). The same shall apply to any debt-securing mortgage in the case provided for by section 1187 of the Civil Code regarding the attachment of the principal claim.
Section 830a Attachment of a maritime mortgage claim
(1) In order to attach a claim for which a maritime mortgage has been established, the attachment is to be entered in the register of ships or in the register of ships under construction; such entry shall be made on the basis of the attachment order. (2) In cases in which the attachment order is served on the third-party debtor prior to the attachment being entered in the register, the attachment shall be deemed to have been effected upon service. (3) These rules are not to be applied if the attachment concerns claims to the performance designated in section 53 of the Act Governing Rights in Registered Ships and Ships under Construction (Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken) dated 15 November 1940 (Law Gazette of the Reich (Reichsgesetzblatt, RGBl.) I page 1499). The same shall apply where the principal claim of a maritime mortgage is being attached for a claim under a bearer debenture, under a bill of exchange, or under any other paper transferable by endorsement.
Section 831 Attachment of endorsable bills
The attachment of claims under bills of exchange and other bills that may be transferred by endorsement is effected by the court-appointed enforcement officer taking possession of such bills.
Section 832 Scope of attachment in the event of ongoing emoluments
The security right acquired by the attachment of a wage claim or a similar claim consisting of ongoing emoluments shall extend to cover also those amounts that fall due after the attachment.
Section 833 Scope of attachment in the case of earned income and service income
(1) Insofar as service income is attached, this shall also concern the income that the debtor stands to earn as a result of having been transferred to another office, of having been appointed to another office, or as a result of a wage increase. This rule is not to be applied to any cases in which the employer changes. (2) Should the work relationship or service relationship end and the debtor and the third- party debtor establish a new such relationship within nine (9) months, the attachment shall also extend to cover the claim under the new work or service relationship.
Section 833a Scope of attachment in the case of credit balances on an account
The attachment of a credit balance on an account kept with a credit institution comprises the credit balance existing on the date on which the attachment order is served, as well as the daily balances given on the days following the attachment.
Section 834 Debtor is not heard
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The debtor is not to be heard, prior to the attachment, regarding the request for attachment.
Section 835 Transfer of a monetary claim
(1) The monetary claim that has been attached is to be transferred to the creditor, at his choice, either for collection or, in lieu of payment at the nominal value. (2) In the latter case, the claim devolves onto the creditor; this has the effect that the creditor is satisfied as concerns his claim vis-à-vis the debtor in the extent to which the claim exists. (3) The stipulations of section 829 subsections (2) and (3) shall apply mutatis mutandis to the transfer. Should a debtor be an individual and his balance with a credit institution have been attached and transferred to the creditor, payment out of the balance may be made to the creditor, or the amount may be lodged, only four (4) weeks after the court order as to the transfer has been served on the third-party debtor; where a balance has been attached that will be credited only at a future date, the court responsible for execution will additionally order, upon a corresponding petition being filed, that payment may be made to the creditor, or the amount may be lodged, only four (4) weeks after the amounts have been credited to the debtor’s account. (4) Where a balance has been attached that will be transferred to the debtor only at a future date and credited to an account exempted from attachment in the sense as defined by section 850k (7), the third-party debtor may make payment to the creditor, or lodge the amount, only after one (1) calendar month has expired following the month in which the respective amount has been credited to the debtor’s account. The court responsible for execution may issue an order in derogation herefrom, upon a corresponding petition having been filed by the creditor, should the provision made in the first sentence result in the creditor being subjected to a hardship that said creditor cannot reasonably be expected to bear, even if the debtor’s interest in protection is fully taken into account. (5) Where remuneration for work performed or services provided personally by the debtor, who is an individual, which is payable to same on a non-recurrent basis, is transferred to the creditor, or where other income that is not earned income is so transferred to the creditor, the third-party debtor may make payment to the creditor, or lodge the amount, only four (4) weeks following service of the court order as to transfer.
Section 836 Effect of the transfer
(1) The transfer takes the stead of formal declarations made by the debtor on which the entitlement to collect the claim depends pursuant to the stipulations of civil law. (2) The court order as to the transfer shall be deemed to be legally valid, even if it has been issued wrongly, to the benefit of the third-party debtor vis-à-vis the debtor until it is repealed and the third-party debtor becomes aware of this fact. (3) The debtor is under obligation to provide the creditor with the information the latter requires in order to assert his claim, and to surrender to the creditor the records or documents available with the debtor concerning the claim. Should the debtor fail to provide such information, he shall be under obligation, upon the creditor filing a corresponding petition, to make the corresponding declarations for the record and to give an assurance regarding his statements by a statement made in lieu of an oath. The court-appointed enforcement officer competent pursuant to section 802e shall summon the debtor to take the latter’s information and to administer the statutory declaration in lieu of an oath. The stipulations of section 802f (4), of sections 802g through 802i, and of section 802j subsections (1) and (2) shall apply mutatis mutandis. The creditor may obtain the surrender of the records or documents by way of compulsory enforcement.
Section 837 Transfer of a mortgage claim
(1) The physical delivery of the court order regarding the transfer to the creditor shall be sufficient for transferring an attached claim for which a mortgage exists. In those cases in
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which the handover of the mortgage deed is ruled out, the transfer in lieu of payment shall require the transfer to be entered in the land register; the entry shall be made on the basis of the court order as to the transfer. (2) These rules are not to be applied to the extent the transfer concerns claims to the performance designated in section 1159 of the Civil Code (Bürgerliches Gesetzbuch, BGB). The same shall apply to the transfer of the principal claim in the case of a debt-securing mortgage as provided for by section 1187 of the Civil Code. (3) In the case of a debt-securing mortgage of the type designated in section 1190 of the Civil Code (Bürgerliches Gesetzbuch, BGB), the principal claim may be attached and transferred pursuant to the general regulations, provided that the creditor has filed a petition for the claim to be transferred without the mortgage in lieu of payment.
Section 837a Transfer of a maritime mortgage claim
(1) Where the claim is transferred for collection, the physical delivery to the creditor of the court order as to the transfer shall be sufficient for transferring an attached claim for which a maritime mortgage exists. The transfer in lieu of payment shall require the transfer to be entered in the register of ships or in the register of ships under construction; the entry shall be made on the basis of the court order as to the transfer. (2) These rules are not to be applied insofar as the transfer concerns claims to the performance designated in section 53 of the Act Governing Rights in Registered Ships and Ships under Construction (Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken) dated 15 November 1940 (Law Gazette of the Reich (Reichsgesetzblatt, RGBl.) I page 1499). The same shall apply, in the case of a maritime mortgage, if the principal claim is being transferred for a claim under a bearer debenture, under a bill of exchange or under any other instrument transferable by endorsement. (3) Should a maritime mortgage have been limited to a maximum amount (section 75 of the Act referred to in subsection (2)), section 837 (3) shall apply mutatis mutandis.
Section 838 Objection of the debtor in the case of pledged collateral
Insofar as a claim secured by pledged collateral is transferred, the debtor may refuse to surrender to the creditor the collateral subjected to the pledge until he is provided with security for the liability to which he may be subject in the event the creditor violates his obligations vis-à-vis the pledgor of the collateral.
Section 839 Transfer where the debtor is authorised to avert enforcement
If the debtor is able to avert the enforcement pursuant to section 711, first sentence, section 712 (1), first sentence, by providing a security or lodgment, the attached monetary claims shall be transferred only for collection and only with the effect of the third-party debtor having to lodge the amount owed.
Section 840 Obligation of the third-party debtor to make declarations
(1) Upon the creditor so demanding, the third-party debtor is to declare to the creditor, within two (2) weeks of the date on which the attachment order was served:
1. Whether and to what extent he acknowledges the claim as being justified and is prepared to make payment;
2. Whether any other persons are pursuing any claims, and if so, which these claims are;
3. Whether any claims have already been attached for other creditors, and if so, which these claims are
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4. Whether an order as been issued in the course of the past twelve (12) months instructing that the balance credited to the account of which the credit balance has been attached is exempted from attachment in accordance with section 850l, and
5. Whether or not the account of which the balance has been attached is an account exempted from attachment in the sense as defined by section 850k (7).
(2) The record of service must include the notice that such declarations are to be made. The third-party debtor shall be liable to the creditor for any damage arising from the failure to fulfil his obligations. (3) The declarations by the third-party debtor may be made to the court-appointed enforcement officer at the time the attachment order is served or within the period determined in the first subsection. In the former case, they are to be included in the record of service and are to be signed by the third-party debtor.
Section 841 Obligation to give third-party notice
A creditor pursuing his claim before the courts is under obligation to give third-party notice to the debtor in the court proceedings unless this requires service abroad or service by publication.
Section 842 Compensation of damages for delayed recovery of claims
The creditor delaying the recovery of a claim that has been transferred to him for collection shall be liable to the debtor for any damage arising therefrom.
Section 843 Waiver by the creditor having a right of lien
The creditor may waive the rights acquired by the attachment and transfer for collection notwithstanding his claim. The waiver is effected by a corresponding declaration, which is to be served on the debtor. The declaration is to be served on the third-party debtor as well.
Section 844 Other form of realisation
(1) Should the attached claim be subject to conditions, or should it have a fixed maturity date, or should its collection entail difficulties because it depends on counter-performance being made, or should it entail other difficulties, the court may, upon a corresponding petition having been filed, direct another form of realisation to be implemented instead of a transfer. (2) The opponent is to be heard prior to the court order being issued by which the petition is complied with, unless service abroad or service by publication is required.
Section 845 Notice of imminent attachment of a debt
(1) Based on an enforceable deed of title, the creditor may have a notice served on the third- party debtor and the debtor, even prior to the attachment, that the attachment is imminent, which is to include the notice to the third-party debtor that he is to not make payment to the debtor, and the notice to the debtor to forgo any disposition over the claim, in particular its collection. The court-appointed enforcement officer is to himself prepare the notification with the said notices if he has been expressly instructed to do so by the creditor. In cases in which a debtor is located abroad, the order shall not be served and instead shall be mailed. (2) The notification to the third-party debtor has the effect of a seizure (section 930), provided the claim is attached within one (1) month. The period shall commence on the day on which the notification is served.
Section 846 Compulsory enforcement against claims to surrender
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Compulsory enforcement against claims that concern the surrender or the transfer of ownership of physical objects shall be performed in accordance with sections 829 to 845, taking account of the provisions made hereinbelow.
Section 847 Claim to surrender of a movable object
(1) In attaching a claim concerning a movable physical object, an order shall direct that the object is to be surrendered to a court-appointed enforcement officer charged with this task by the creditor. (2) The rules regarding the realisation of attached objects are to be applied to the realisation of the object.
Section 847a Claim to surrender of a ship
(1) In attaching a claim concerning a registered ship, it is to be ordered that the ship be surrendered to a fiduciary, who is to be appointed by the court responsible for execution. (2) Should the claim be directed at obtaining the transfer of ownership, the fiduciary shall represent the debtor in transferring ownership. Upon the ownership devolving to the debtor, the creditor shall obtain a maritime mortgage for his claim. The fiduciary is to approve the entry of the maritime mortgage in the register of ships. (3) Compulsory enforcement against the ship shall be effected in accordance with the rules applying to compulsory enforcement against immovable property. (4) The above rules shall apply mutatis mutandis where the claim concerns a ship under construction that has been entered, or has the capacity to so be entered, in the register of ships under construction.
Section 848 Claim to surrender of immovable property
(1) In attaching a claim concerning immovable property, an order is to be issued, upon the creditor filing a corresponding petition, that the property be surrendered to a sequestrator, who is to be appointed by the local court (Amtsgericht, AG) in the district of which the property is located. (2) In cases in which the claim is directed at obtaining the transfer of ownership, conveyance shall be made to the sequestrator as the debtor’s representative. Upon the ownership devolving to the debtor, the creditor shall obtain a debt-securing mortgage for his claim. The sequestrator is to approve the entry of the debt-securing mortgage. (3) Compulsory enforcement against the object surrendered shall be effected in accordance with the rules applying to compulsory enforcement against immovable property.
Section 849 No transfer in lieu of payment
It is inadmissible to transfer, in lieu of payment, the claims designated in section 846.
Section 850 Exemption from attachment of earned income
(1) Earned income that is payable in money may be attached only subject to the stipulations set out in sections 850a through 850i. (2) Earned income in the sense of this rule consists of the remuneration and pensions of civil servants, wages and service pay, retirement pensions, and similar continuous earnings granted after the person concerned has temporarily or permanently left service or his work relationship, and furthermore consists of pensions paid to surviving dependents as well as of other remuneration for services of any kind that make up the debtor’s economic activities either in their entirety or to a significant degree. (3) The following emoluments are defined as earned income to the extent they are payable in money:
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a) Emoluments that an employee may claim as compensation for non-compete restrictions for the time following the date on which his relationship of service has ended;
b) Pensions granted on the basis of insurance contracts, if such insurance has been taken out in the interests of providing a pension to the insured or to his dependent next of kin.
(4) The attachment of the earned income payable in money covers all forms of remuneration to which the debtor is entitled for the performance of his work or service obligations, regardless of how such remuneration is designated or computed.
Section 850a Emoluments exempted from attachment
The following are exempted from attachment:
1. Half of those parts of the earned income that are paid for overtime work;
2. The emoluments granted in addition to the earned income for the duration of a holiday, allowances granted on the occasion of a special event within the operation, and fidelity bonuses, provided that they remain within the scope of what is usual;
3. Expense allowances, daily allowances, and other social allowances granted for activities pursued away from the office, payments made for work material provided by the employee, danger pay, as well as dirt and hardship pay, provided that these emoluments remain within the scope of what is usual;
4. Christmas bonuses up to the amount of half the monthly earned income, the exemption being capped at 500 euros;
5. Marriage and child birth benefits, provided that the enforcement is being pursued for other claims than those arising from the marriage or the birth of the child;
6. Child-raising allowances, student allowances, and similar emoluments;
7. Death benefits and survivors’ benefits under work or service relationships;
8. Special allowances for the blind.
Section 850b Emoluments attachable subject to conditions
(1) Furthermore, the following are exempted from attachment:
1. Pensions to be paid for an injury to limb or health;
2. Maintenance pensions based on a statutory rule, as well as the pensions to be paid because the recipient has been stripped of such a claim;
3. Continued earnings that a debtor receives from foundations or otherwise as a result of the care and generosity of a third party, or due to the provisions made for retired farmers remaining on the farm, or due to the provisions made in an agreement on removal from a house;
4. Emoluments paid by plans established for the maintenance of widows and orphans, aid and assistance plans, and health insurance funds, such emoluments being granted exclusively or to a significant part for the purpose of providing maintenance, and furthermore claims under life insurance policies that have been taken out only against the risk of the insured party’s dying, provided the amount insured is not higher than 3,579 euros.
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(2) These emoluments may be attached pursuant to the rules applying to earned income where the enforcement against the debtor’s other movable assets has not achieved, or foreseeably will not achieve, the full satisfaction of the creditor, and where the attachment is equitable in light of the circumstances of the case, in particular in light of the nature of the claim to be recovered and the amount of the emoluments. (3) Prior to delivering its decision, the court responsible for execution shall hear the parties involved.
Section 850c Attachment-exempt threshold for earned income
(1) Earned income shall be exempted from attachment provided it does not amount to more than 930 euros 1) per month, 217.50 euros 2) per week, or 43.50 euros 3) per day, depending on the period of time for which it is being paid. In cases in which, as a result of a statutory obligation, the debtor makes maintenance payments to a spouse, a divorced spouse, a partner under a civil union, or a former partner under a civil union, or to a relative, or where the debtor makes such payments to a parent pursuant to sections 1615l and 1615n of the Civil Code (Bürgerliches Gesetzbuch, BGB), the amount up to which earned income shall be exempted from attachment shall increase to up to 2,060 euros 4) per month, 478.50 euros 5) per week, or 96.50 euros 6) per day, doing so by 350 euros 7) per month, 81 euros 8) per week, or 17 euros 9) per day, for the first person to whom such maintenance is granted, and by 195 euros 10) per month, 45 euros 11) per week, or 9 euros 12) per day in each case for the second through fifth person. (2) If the earned income is higher than the amount up to which such earned income is exempt from attachment pursuant to subsection (1), based on the number of persons to which the debtor is paying maintenance, the excess amount shall be partly exempted from attachment in the amount of three tenths if the debtor is not paying maintenance to any of the persons set out in subsection (1), two further tenths for the first person to whom maintenance is paid, and one further tenth for each of the second to fifth persons. That part of the earned income that is in excess of 2,851 euros 13) per month (658 euros 14) per week, 131.58 euros 15) per day) shall not be taken into account in computing the amount that is exempted from attachment. (2a) The amounts that have been exempted from attachment pursuant to subsection (1) and subsection (2), second sentence, shall be modified in each case by 1 July of every second year, and shall so be modified for the first time as per 1 July 2003; the computation of the modification is to be based on the percentage change, as compared to the respective previous year, of the basic personal allowance granted pursuant to section 32a (1) number 1 of the Income Tax Act (Einkommensteuergesetz) and on the version of section 32a (1) number 1 of the Income Tax Act applicable as per 1 January of the respective year. The Federal Ministry of Justice shall publish the relevant amounts in due time in the Federal Law Gazette (Bundesgesetzblatt, BGBl.). (3) In computing the part of the earned income that is attachable pursuant to subsection (2), the earned income is to be rounded down, where applicable after having deducted the amount that is attachable pursuant to subsection (2), second sentence, that has been set out
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in the table annexed to the present Code; such rounding shall be made for monthly payments to an amount divisible by 10 euros, for weekly payments to an amount divisible by 2.50 euros, and for daily payments to an amount divisible by 0.50 euros. The attachment order shall be deemed to be sufficiently clear if it makes reference to said table. (4) Should a person to whom the debtor is paying maintenance based on statutory obligations have earnings of his own, the court responsible for execution may determine at its equitably exercised discretion, upon the creditor having filed a corresponding petition, that this person shall not be considered, either entirely or in part, in computing the part of the debtor’s earned income that is exempted from attachment; should that person be taken into account only partially, subsection (3), second sentence, shall not be applied.
Section 850d Liability to attachment where the debtor must comply with claims to maintenance
(1) Regarding claims to maintenance to which a relative, a spouse, a divorced spouse, a partner under a civil union, or a former partner under a civil union is entitled, or a parent pursuant to sections 1615l and 1615n of the Civil Code (Bürgerliches Gesetzbuch, BGB), the earned income and the emoluments set out in section 850a numbers 1, 2 and 4 are attachable without the limitations designated in section 850c. However, the debtor is to be left sufficient funds as he requires for his necessary maintenance and in order to fulfil his current statutory maintenance obligations to the beneficiaries taking precedence before the creditor, or to satisfy, in equal measure, the beneficiaries ranking equally with the creditor; of the emoluments set out in section 850a numbers 1, 2 and 4, he is to be left with at least half of the amount exempted from attachment pursuant to section 850a. The part of the debtor’s earned income left to him thereafter may not be higher than the amount that would have to be left to him in accordance with the stipulations of section 850c to the detriment of those creditors who are not privileged. The stipulations of the present subsection shall not apply insofar as it cannot be assumed, under the circumstances given at that time, that the debtor intentionally evaded his payment obligation where overdue performance is to be attached that fell due longer than one (1) year prior to the petition having been filed for issuance of the attachment order. (2) Where there are several beneficiaries as defined in subsection (1), they are to be considered in the order of their claims pursuant to section 1609 of the Civil Code (Bürgerliches Gesetzbuch, BGB) and pursuant to section 16 of the Act on Civil Unions (Lebenspartnerschaftsgesetz), in which context several beneficiaries with similar entitlements shall have equal rank amongst each other. (3) In the case of the enforcement of claims designated in subsection (1), as well as in the case of pensions to be paid on the occasion of injuries to limb or health, the income that will be earned in future may be attached and transferred together with the attachment of due claims in order to satisfy the claims becoming due at a future date.
Section 850e Computation of attachable earned income
In computing attachable earned income, the following shall apply:
1. The emoluments that are exempted from attachment pursuant to section 850a shall not be included in the computation, nor shall amounts be included that are to be remitted directly based on the stipulations of tax law or welfare law in order to fulfil the debtor’s obligations under law. These amounts shall be equivalent to amounts payable in the disbursement period that the debtor:
a) Pays according to the stipulations of the acts governing social insurance in order to maintain his social insurance coverage; or
b) Pays to a health insurance plan comprising a specific group of insured persons or a private health insurance company, provided that they remain within the scope of what is usual.
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2. Should the debtor earn income from several sources, the court responsible for execution is to add them up in the context of the attachment, upon corresponding application being made. The basic personal allowance exempted from attachment is to be deducted first and foremost from the earned income on which the debtor’s livelihood is essentially based.
2a. Upon a corresponding application being made, the claims to current monetary benefits paid pursuant to the Social Code (Sozialgesetzbuch) are to be added to the earned income to the extent they are subject to attachment. To the extent the attachment is not being effected for statutory claims to maintenance, the basic personal allowance exempted from attachment is to be taken primarily from the current monetary benefits paid in accordance with the Social Code. Claims to monetary benefits for children may be added to the earned income only to the extent they may be attached pursuant to section 76 of the Income Tax Act (Einkommensteuergesetz) or pursuant to section 54 (5) of the First Book of the Social Code.
3. Should the debtor receive remuneration in kind in addition to the income payable in money, the cash remuneration and the remuneration in kind are to be added to each other. In such event, the amount payable in cash shall be attachable insofar as the part of the debtor’s total income that is exempted from attachment pursuant to section 850c is covered by the value of the remuneration in kind left to the debtor.
4. Where an attachment, an assignment, or any other disposition regarding one of the claims designated in section 850d collides with an attachment for any other claim, the parts of the earned income that are liable to attachment in an extended scope pursuant to section 850d are to be set off initially from the claims to maintenance. The court responsible for execution shall perform the set-off upon a party involved filing the corresponding petition. As long as no decision by the execution court has been served on the third-party debtor, he may make payments with redemptive effect based on the content of the attachment orders, assignments and other dispositions of which he is aware.
Section 850f Modification of the amount exempted from attachment
(1) Upon corresponding application being made, the court responsible for execution may leave a part of the debtor’s attachable earned income as defined by sections 850c, 850d and 850i to the debtor if:
a) The debtor proves that, should the attachment-exempt thresholds be applied as have been set out in the appendix to this Code (under section 850c), the necessary livelihood in the sense as defined in the Third and Eleventh Chapter of the Twelfth Book of the Social Code (Sozialgesetzbuch) or in Chapter 3 Division 2 of the Second Book of the Social Code is not covered for himself and the persons to whom he is to pay maintenance;
b) This is required by special needs of the debtor on personal or professional grounds; or if
c) This is required by the substantial scope of the debtor’s statutory obligations to pay maintenance, in particular the number of his dependents, and if this is not contravened by overriding interests of the creditor. (2) Should compulsory enforcement be pursued for a claim arising from intentionally committed tort, the execution court may determine, upon the creditor filing a corresponding petition, the attachable part of the earned income without taking account of the limitations provided for in section 850c; however, the debtor is to be left with sufficient funds to cover his necessary maintenance and to allow him to fulfil his current statutory obligations to pay maintenance.
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(3) Where compulsory enforcement is pursued for claims other than those designated in subsection (2) and in section 850d, and in those cases in which the debtor’s earned income amounts to more than 2,815 euros 1) per month (641 euros 2) per week, 123.50 euros 3) per day), the execution court may at its sole discretion determine, upon the creditor filing a corresponding petition, the attachment of amounts above and beyond those amounts that are attachable pursuant to section 850c, and in so doing the court shall take account of the creditor’s and of the debtor’s concerns. However, the debtor is to be left at least the amount that would result for an earned income of 2,815 euros 1) per month (641 euros 2) per week, 123.50 euros 3) per day) under section 850c. The amounts according to sentences 1 and 2 shall be modified in accordance with the provision made in section 850c (2)a in each case as per 1 July of every second year, and for the first time as per 1 July 2003. The Federal Ministry of Justice shall publish the relevant amounts in due time in the Federal Law Gazette (Bundesgesetzblatt, BGBl.).
Section 850g Modification of the prerequisites for an exemption from attachment
Should the prerequisites for assessing the part of the earned income that is exempted from attachment change, the court responsible for execution is to correspondingly modify the attachment order upon the debtor or creditor having filed a corresponding petition. A third party shall also be entitled to file such a petition if the debtor is obligated under law to pay maintenance to that party. The third-party debtor may perform in accordance with the content of the earlier attachment order, with redemptive effect, until the court order as to the modification is served on him.
Section 850h Disguised earned income
(1) Insofar as the recipient of the work performed or services provided by the debtor has entered into obligation to perform vis-à-vis a third party, which performance represents remuneration for the debtor’s performance under the circumstances given at that time, either as a whole or in part, the claim of the third-party beneficiary may be attached in this regard, based on the enforceable deed of title against the debtor, as if the debtor was entitled to such claim. The attachment of the debtor’s claim to remuneration shall comprise, without any further requirements needing to be met, the claim of the third-party beneficiary. The attachment order is to be served on the third-party beneficiary as well as on the debtor. (2) Should the debtor perform work for or provide services to a third party in a permanent relationship that, by their nature and scope, are usually remunerated, and so performs the work and provides the services without remuneration, or against remuneration that is disproportionately low, a reasonable remuneration shall be deemed owed in the relationship of the creditor to the recipient of the work and services. In reviewing whether or not these prerequisites are given, and in assessing the remuneration, all circumstances of the individual case are to be taken into account, in particular the nature of the work performed and services provided, the family or other relationship given between the party entitled to the performance of the services and the party obligated to perform them, and the economic capacity of the party entitled to the performance of the services.
Section 850i Exemption from attachment of other earnings
(1) Where remuneration that is not payable on a regularly recurring basis for work performed or services provided personally by the debtor, or other earnings that are not earned income, has/have been attached, the court is to leave funds to the debtor, upon corresponding petition being made, for a reasonable period of time, in that amount that would remain for him, according to the court’s estimate at its free discretion, if the income he was earning consisted of current wages or service pay. In taking the decision, the debtor’s economic circumstances, and in particular his other options for earning his living, are to be assessed at
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the court’s discretion. . The court is to refuse to comply with a petition filed by the debtor insofar as it is contravened by overriding concerns of the creditor. (2) The stipulations of section 27 of the Home Work Act (Heimarbeitsgesetz) of 14 March 1951 (published in Federal Law Gazette (Bundesgesetzblatt, BGBl.) I page 191) shall remain unaffected hereby. (3) The provisions of the rules governing insurance, nursing care, and pensions as well as other statutory stipulations concerning the attachment of claims of a certain kind shall remain unaffected hereby.
Section 850k Account exempted from attachment
(1) Where the balance credited to the debtor’s account with a credit institution, such account being exempted from attachment, is attached, the debtor may dispose of the balance up to the amount of the monthly allowance pursuant to section 850c (1), first sentence, in conjunction with section 850c (2a); in this regard, the balance is not subject to attachment. The balance in the sense of the first sentence includes any balance that may not be paid to the creditor or lodged until the expiry of the period provided for by section 835 (4). Insofar as, in the course of the respective calendar month, the debtor has not disposed of the balance in the amount that is exempt from attachment pursuant to the first sentence, this balance shall not be subject to attachment in the following calendar month, in addition to the balance exempted from attachment under the first sentence. The first to third sentences shall apply mutatis mutandis where the balance credited to a current account of the debtor has been attached, and such current account is converted to an account exempted from attachment prior to expiry of four (4) weeks following service of the court order as to transfer. (2) In all other regards, the attachment of the credit balance shall be deemed to have been ordered subject to the proviso that the following amounts are not subject to attachment, thus increasing the allowance pursuant to subsection (1):
1. The amounts exempted from attachment pursuant to section 850c (1), second sentence, in conjunction with section 850c (2a), first sentence, where
a) The debtor is paying maintenance to one or several persons based on statutory obligations, or
b) The debtor is receiving monetary benefits pursuant to the Second or Twelfth Book of the Social Code (Sozialgesetzbuch) for persons living with him in a household in the sense as defined by section 7 (3) of the Second Book of the Social Code or sections 19, 20, 36, first sentence, or section 43 of the Twelftth Book of the Social Code, vis-à-vis whom the debtor is not obligated to pay maintenance in accordance with statutory provisions;
2. Non recurrent monetary benefits in the sense as defined by section 54 (2) of the First Book of the Social Code and monetary benefits serving to compensate the additional expenditures resulting from a physical disability or ill health, in the sense as defined by section 54 (3) number 3 of the First Book of the Social Code;
3. Child benefits or any other monetary benefits received with regard to children, unless these are attached due to a child’s claim to maintenance payments regarding whom the benefits are being granted, or regarding whom the benefits are taken into account.
For the amounts governed by the first sentence, subsection (1), third sentence, shall apply mutatis mutandis. (3) The amount that the court responsible for execution has left unattached in the attachment order shall take the stead of the amounts exempted from attachment under subsection (1) and subsection (2), first sentence, number 1 if the balance is attached due to the claims designated in section 850d.
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(4) The court responsible for execution may determine an amount to be exempted from attachment, upon the corresponding petition being filed, that deviates from the amounts set out in subsection (1), subsection (2), first sentence, number 1 and subsection (3). Sections 850a, 850b, 850c, 850d (1) and (2), sections 850e, 850f, 850g and 850i as well as sections 851c and 851d of the present Code as well as section 54 subsection (2), subsection (3) numbers 1, 2 and 3, subsections (4) and (5) of the First Book of the Social Code, section 17 (1), second sentence, of the Twelfth Book of the Social Code and section 76 of the Income Tax Act (Einkommensteuergesetz) are to be applied mutatis mutandis. In all other regards, the execution court has the authority to deliver the orders designated in section 732 (2). (5) The credit institution is under obligation vis-à-vis the debtor to perform under the contractual arrangements in place as concerns the credit balance that is not subject to attachment in accordance with subsections (1) and (3). This shall apply to the amounts not subject to attachment pursuant to subsection (2) only insofar as the debtor proves – by submitting a certificate of his employer, the institution making payment of the child benefits (Familienkasse), the authority making subsistence payments or any suitable person or authority in the sense of section 305 (1) number 1 of the Insolvency Statute (Insolvenzordnung, InsO) – that the credit balance is not subject to attachment. The performance by the credit institution to the debtor has redemptive effect if it is not aware, also not due to gross negligence on its part, that the certificate is incorrect. Where the debtor is unable to submit proof as stipulated by the second sentence, the court responsible for execution is to determine the amounts in accordance with subsection (2) upon the corresponding petition being filed. The first to fourth sentences also apply with a view to any lodged amounts. (6) Where a monetary benefit pursuant to the Social Code or child benefits are credited to an account exempted from attachment, the credit institution may set off the claim arising by the credit only from those claims, or offset only those claims from such credit, for a period of fourteen (14) days from the date on which such amount was credited, to which it is entitled as remuneration for managing the account or based on dispositions over the account by the beneficiary within that period of time. Up to the amount of the credit balance remaining thereafter, the credit institution is not authorised, for a period of fourteen (14) days from the date on which said amount was credited, to refuse to implement payment instructions for lack of funds if the beneficiary proves, or if it is otherwise known to the credit institution, that the amount credited is a monetary benefit granted pursuant to the Social Code, or that it consists of child benefits. The remuneration of the credit institution for its management of the account may also be set off against amounts pursuant to subsections (1) to (4). (7) In the agreement on which the management of a current account is based, the customer, this being an individual, or his legal representative may agree with the credit institution that the current account is to be managed as an account exempted from attachment. The customer may demand at any time that the credit institution manage his current account as an account exempted from attachment. Where the balance credited to the current account has already been attached, the debtor may demand that the current account be kept as an account exempted from attachment as per the beginning of the fourth (4th) bank working day following the date on which he made the corresponding declaration. (8) Every person may maintain only one account exempted from attachment. In the contractual arrangements, the customer is to assure the credit institution that he is not maintaining any other account exempted from attachment. The credit institution may notify information services that it is managing an account exempted from attachment for the customer. The information services may use this information only to provide information to credit institutions making the corresponding inquiries in order to check the veracity of the assurance made in accordance with the second sentence hereof, as to whether or not the person concerned is maintaining an account exempted from attachment. Even if the data subject grants his consent, it is not admissible to collect, process, and use the data for any other purpose than that set out in the fourth sentence.
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(9) Where, contrary to the stipulations of subsection (8), first sentence, a debtor maintains several current accounts as accounts exempted from attachment, the court responsible for execution will order, upon a creditor filing the corresponding petition, that only the current account the creditor has designated in the petition will remain an account exempted from attachment. The creditor is to demonstrate to the satisfaction of the court that the pre- requisites set out in the first sentence have been met by submitting the corresponding declarations by the third-party debtors. The debtor will not be heard. The decision is to be served on all third-party debtors. Upon the decision being served on those credit institutions managing current accounts that have not been determined as accounts exempted from attachment, the effects set out in subsections (1) to (6) shall cease.
Section 850l Order as to amounts being non-attachable that have been credited to accounts
exempted from attachment Upon the debtor filing a corresponding petition, the court responsible for execution may order that the credit balance on the account exempted from attachment not be subject to attachment for a term of up to twelve (12) months if the debtor proves that, in the six (6) months preceding the date on which he filed the petition, the vast majority of the amounts credited to the said account were non-attachable amounts, and if the debtor demonstrates to the satisfaction of the court that it can be expected that the vast majority of the amounts to be credited to the account in the coming twelve (12) months likewise will be non-attachable amounts. The court may refuse to issue this order if this is contravened by overriding interests of the creditor. The order is to be reversed, upon a creditor filing the corresponding petition, if the pre-requisites therefor are no longer given, or if the order is contravened by the creditor’s overriding interests.
Section 851 Non-transferable claims
(1) Where no special rules exist, a claim shall be liable to attachment only insofar as it is transferable. (2) A claim that is not transferable pursuant to section 399 of the Civil Code (Bürgerliches Gesetzbuch, BGB) may be attached and transferred for collection insofar as the object owed is liable to attachment.
Section 851a Exemption from attachment for farmers
(1) The attachment of claims, to which a debtor operating an agricultural operation is entitled for the sale of agricultural products, is to be vacated by the court responsible for execution, upon the debtor having filed a corresponding petition, insofar as the earnings are indispensible for the maintenance of the debtor, his family and employees, or in order to maintain a proper administration of his operation. (2) No attachment shall be performed in cases in which it is obvious that the prerequisites for repealing compulsory enforcement pursuant to subsection (1) are given.
Section 851b Exemption from attachment in the case of rents under tenancy and lease agreements
(1) Upon the debtor filing a corresponding petition, the attachment of rents paid under tenancy and lease agreements is to be vacated by the court responsible for execution insofar as these earnings are indispensible for the debtor to maintain the property, to perform the necessary upkeep work and to satisfy claims that would take precedence, in the event of compulsory enforcement being effected against the property, before the creditor’s claim pursuant to section 10 of the Act on Enforced Auctions and Receivership (Gesetz über die Zwangsversteigerung und die Zwangsverwaltung). The same shall apply to the attachment of cash funds and credit balances resulting from rent payments made under tenancy and lease agreements that are indispensible for the purposes designated in the first sentence.
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(2) Should the petition not have been filed within a period of two (2) weeks, it shall be dismissed without having been reviewed on its merits in those cases in which the execution court is convinced that the debtor failed to file the petition earlier with the intention of protracting the proceedings or due to his gross negligence. The period shall commence with the attachment. (3) Orders pursuant to subsection (1) may be issued in several instances and, insofar as this is mandated under the circumstances given at that time, they may be reversed or modified upon corresponding application being made. (4) The creditor is to be heard prior to the decisions designated in subsections (1) and (3) being delivered, insofar as this is possible without any significant delays. The factual circumstances that are relevant to the decision are to be demonstrated to the satisfaction of the court. No attachment shall be made if it is obvious that the prerequisites for repealing a compulsory enforcement pursuant to subsection (1) are given.
Section 851c Exemption from attachment in the case of old-age pensions
(1) Claims to payments made on the basis of agreements may be attached like earned income only if:
1. The payment is made at regular intervals on a life-long basis, but not prior to the recipient’s 60th birthday, or only upon the occurrence of occupational disability;
2. The claims under the agreement may not be disposed of;
3. The determination of third parties as beneficiaries is ruled out, to the exception of surviving dependents or beneficiaries; and
4. No payment of a capital lump sum was agreed, except as death benefits. (2) In order to enable the debtor to provide for his old age within reasonable bounds, he may accumulate a determined amount that is exempted from attachment, on the basis of an agreement designated in subsection (1), up to a total of 256,000 euros, such accumulation being scaled in accordance with his age in life and taking account of the developments on the capital market, the mortality risk, and the amount of the attachment-exempt threshold. The debtor may accumulate, from when he is 18 years of age until his 29th birthday: 2,000 euros per year, from when he is 30 year of age until his 39th birthday: 4,000 euros per year, from when he is 40 years of age until his 47th birthday: 4,500 euros per year, from when he is 48 years of age until his 53rd birthday: 6,000 euros per year, from when he is 54 years old until his 59th birthday: 8,000 euros per year, and from when he is 60 years old until his 67th birthday: 9,000 euros per year. Where the surrender value of the old-age provisions exceeds the amount that is exempted from attachment, three tenths of the surplus amount shall be exempted from attachment. The third sentence shall not apply to the part of the surrender value that is in excess of the amount set out in the first sentence, multiplied by a factor of three (3). (3) Section 850e numbers 2 and 2a shall apply mutatis mutandis.
Section 851d Exemption from attachment in the case of retirement assets subsidised by tax credits
Monthly payments made in the form of a life-long pension, or monthly instalments paid out, in the context of a withdrawal plan pursuant to section 1 (1), first sentence, number 4 of the Act Governing the Certification of Agreements for Old-Age Provisions (Altersvorsorgeverträge-Zertifizierungsgesetz), from retirement assets subsidised by tax credits are attachable as if they were earned income.
Section 852 Claims attachable subject to restrictions
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(1) The claim to a compulsory portion of an estate shall be liable to attachment only if it has been acknowledged by contract or if it has become lis pendens. (2) The same shall apply to the claim to which a donor is entitled pursuant to section 528 of the Civil Code (Bürgerliches Gesetzbuch, BGB) to surrender of the gift, and likewise to the claim of a spouse to the equalisation of accrued gains.
Section 853 Several attachments of a monetary claim
Should a monetary claim have been attached for a plurality of creditors, the third-party debtor shall be entitled and, at the request of a creditor to whom the claim was transferred, the third-party debtor shall be obligated to lodge the amount owed, giving notice of the overall factual situation and making physical delivery of the orders served on him to the local court (Amtsgericht, AG), the order of which was first served on him.
Section 854 Several attachments of a claim to movable assets
(1) If a claim concerning a movable asset of a physical nature has been attached for a plurality of creditors, the third-party debtor shall be entitled and, at the request of a creditor to whom the claim was transferred, the third-party debtor shall be obligated to surrender the asset, giving notice of the overall factual situation and making physical delivery of the orders served on him to the court-appointed enforcement officer who, according to the order first served on the debtor, is authorised to take possession of the asset. Should the creditor not have designated such a court-appointed enforcement officer, the enforcement officer shall be appointed, upon corresponding application being made by the third-party debtor, by the local court (Amtsgericht, AG) in the district of which the asset that is to be surrendered is located. (2) If the proceeds obtained do not suffice to cover the claims and if the creditor on whose behalf the second or a later attachment was performed demands that they be distributed differently than in the sequence in which the attachments were made, without the other creditors involved consenting to this, the court-appointed enforcement officer is to notify the local court (Amtsgericht, AG), whose order was first served on the third-party debtor of the overall factual situation, and is to lodge the proceeds. The documents relevant to the proceedings are to be attached to this notification. (3) Should the attachment have been performed for several creditors simultaneously, the same procedure is to be followed.
Section 855 Several attachments of a claim to immovable property
Where the claim concerns immovable property, the third-party debtor shall be entitled and, should a creditor to whom the claim has been transferred so demand, the third-party debtor shall be obligated to surrender the property, giving notice of the overall factual situation and making physical delivery of the orders served on him to the sequestrator appointed by the local court (Amtsgericht, AG) in the district of which the property is situate, or to the sequestrator appointed as per the petition filed.
Section 855a Several attachments of a claim to a ship
(1) In cases in which the claim concerns a registered ship, the third-party debtor shall be entitled and, should a creditor to whom the claim has been transferred so demand, the third- party debtor shall be obligated to surrender the ship, giving notice of the overall factual situation and making physical delivery of the orders served on him to the fiduciary appointed in the order first served on him. (2) Subsection (1) shall apply mutatis mutandis if the claim concerns a ship under construction that has been entered in the register of ships under construction, or that is eligible for entry in such register.
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Section 856 Action brought in the case of several attachments
(1) Each creditor to whom the claim has been transferred is entitled to bring an action before the courts against the third-party debtor for fulfilment of the obligations incumbent on the latter pursuant to the stipulations of sections 853 to 855. (2) Each creditor for whom the claim has been attached may join the plaintiff, in any situation that the legal dispute may be in, as a joined party. (3) The third-party debtor is to file a petition with the court hearing the case that the creditors who have not filed the action and who have not joined the plaintiff are to be summoned to the hearing for oral argument. (4) The decision delivered in the legal dispute regarding the claim raised in the action shall take effect for and against the entirety of all creditors. (5) The third-party debtor may not take recourse, vis-à-vis a creditor, to the decision in the third-party debtor’s favour if the creditor was not summoned to the hearing scheduled for oral argument.
Section 857 Compulsory enforcement against other property rights
(1) The above provisions shall apply mutatis mutandis to compulsory enforcement against other property rights that are not subject to compulsory enforcement against the immovable property. (2) Where there is no third-party debtor, the attachment shall be deemed to have been effected at that point in time at which the order has been served on the debtor stipulating that he is to refrain from disposing over the right in any way. (3) Absent any special rules, an inalienable right shall be subject to attachment insofar as its exercise may be left to another party. (4) The court may issue special orders in effecting compulsory enforcement against inalienable rights, the exercise of which may be left to another party. In particular in cases of compulsory enforcement against rights of use, it may direct receivership; in such event the attachment shall be effected by the physical submission to the receiver of the object to be used, unless this has already been effected previously by service of the order. (5) Insofar as it is admissible to dispose over the right as such, this disposition may be directed by the court as well. (6) The rules regarding compulsory enforcement against a claim for which a mortgage has been created shall apply mutatis mutandis to compulsory enforcement against a realty charge, a charge on land, or an annuity charge on land. (7) The rule set out in section 845 (1), second sentence, shall not be applied.
Section 858 Compulsory enforcement against a share in a ship
(1) Section 857 shall apply to compulsory enforcement against a share in a ship (sections 489 et seq. of the Commercial Code (Handelsgesetzbuch, HGB)), with the following departures from the rule. (2) That local court (Amtsgericht, AG) shall have jurisdiction as the court responsible for execution with which the register for the ship is kept. (3) The attachment must be entered in the register of ships; such entry shall be made on the basis of the attachment order. The attachment order is to be served on the managing owner of the ship; where the order is served on the managing owner prior to the entry in the register, the attachment shall be deemed to have been effected against him upon service having been made. (4) The attached share in a ship is realised by way of disposition. An excerpt from the register of ships is to be enclosed with the petition that the court order the disposition, which excerpt is to set out all of the entries concerning the ship and the share in the ship; said excerpt may not be older than one (1) week.
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(5) Should the excerpt from the register of ships show that the share in the ship is encumbered by a security right to which another creditor is entitled than the creditor pursuing compulsory enforcement, the court shall order the proceeds to be lodged. In such event, the proceeds shall be distributed according to the stipulations of sections 873 to 882; claims regarding which a security right to the share in the ship has been entered are to be included in the distribution plan in accordance with the content of the register of ships.
Section 859 Attachment of shares in jointly held property
(1) The share of a partner in the company assets of a partnership concluded pursuant to section 705 of the Civil Code (Bürgerlichen Gesetzbuch, BGB) is liable to attachment. The share of a partner in the individual objects belonging to the company assets is not liable to attachment. (2) The same rules shall apply to a share of a joint heir to the estate and to the individual items constituting the estate.
Section 860 Attachment of shares to common marital property
(1) In cases in which the regime of common marital property has been agreed, the share of one spouse to the common marital property and the individual items constituting it is not liable to attachment. The same shall apply, in the event of the regime of common marital property continuing, to the shares of the surviving spouse and the descendants. (2) Once the community under the regime of common marital property has ended, the share to common marital property is liable to attachment to the benefit of the creditor of the party entitled to the share.
Sections 861 and 862 (repealed)
Section 863 Limitations of attachment where usufruct under an inheritance is concerned
(1) Insofar as a debtor is limited as an heir pursuant to section 2338 of the Civil Code (Bürgerliches Gesetzbuch, BGB) as a result of a reversionary heir having been named, the usufruct of inheritance is not liable to attachment to the extent it is required by the debtor in order to fulfil his statutory obligation to pay maintenance to his spouse, his divorced spouse, his partner under a civil union, a former partner under a civil union, or his relatives, and in order to cover the costs of his maintenance suitable to his station in life. The same shall apply, where the debtor is limited pursuant to section 2338 of the Civil Code by an executor having been appointed, regarding his claim to the annual net proceeds. (2) The attachment is admissible without limitation if the claim of a creditor of an estate is enforced, or a right that is effective also vis-à-vis the reversionary heir or the executor. (3) These rules shall apply mutatis mutandis where the share held by a descendant in the common marital property, in the event of the regime of common marital property continuing pursuant to section 1513 (2) of the Civil Code (Bürgerliches Gesetzbuch, BGB), is subject to a limitation of the type designated in subsection (1).
Title 3 Compulsory enforcement against immovable property
Section 864 Subject matter of enforcements against real estate
(1) Besides plots of real estate, those entitlements shall be subject to compulsory enforcement against immovable property to which those rules apply that refer to plots of real estate, as shall be the ships entered in the register of ships and the ships under construction entered in the register of ships under construction or that are eligible for entry in such register.
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(2) Compulsory enforcement against a portion of a plot of real estate, of an entitlement of the type designated in subsection (1), or of a ship or a ship under construction shall be admissible only where the portion consists of the share of a co-owner or where the creditor’s claim is based on a right with which the portion as such has been encumbered.
Section 865 Relationship to enforcements against movable property
(1) Compulsory enforcement against immovable property shall comprise also those objects to which the mortgage extends in the case of plots of real estate and entitlements, and to which the maritime mortgage extends in the case of ships or ships under construction. (2) Insofar as they are accessories, these items cannot be attached. Under all other circumstances, they shall be subject to compulsory enforcement against movable property provided that they were not attached as part of a compulsory enforcement against immovable property.
Section 866 Types of enforcement
(1) Compulsory enforcement against a plot of real estate is implemented by entry of a debt- securing mortgage for the claim, by enforced auction, and by receivership. (2) The creditor may demand that one of these measures be implemented alone or in addition to the others. (3) A debt-securing mortgage (subsection (1)) may be entered only for an amount greater than 750 euros; interest being enforced as an ancillary claim shall not be taken into account in this context. A uniform debt-securing mortgage may be entered based on several enforceable deeds of title to which one and the same creditor is entitled.
Section 867 Judgment creditor’s mortgage
(1) Upon the creditor filing a corresponding petition, the debt-securing mortgage shall be entered in the land register; such entry is to be noted on the executory title. The mortgage shall be created by the entry being made. The plot of real estate shall be liable also for the costs of entry to be borne by the debtor. (2) In cases in which several of the debtor’s plots of real estate are to be encumbered by the mortgage, the amount of the claim is to be allocated to the individual plots of real estate. The creditor shall determine the amounts so allocated; section 866 (3), first sentence, shall apply mutatis mutandis to the parts. (3) The executory title bearing the notice of entry shall be sufficient basis for satisfying the creditor’s claim from the plot of real estate by implementing an enforced auction.
Section 868 Acquisition of the judgment creditor’s mortgage by the owner
(1) If an enforceable judgment reverses the decision to be enforced, or its provisional enforceability, or if compulsory enforcement is declared inadmissible, or if directions are issued for it to be terminated, the owner of the plot of real estate shall acquire the mortgage. (2) The same shall apply where a court decision directs the temporary stay of the enforcement and, at the same time, abrogates the enforcement activities taken, or where security is provided or lodgment made as permitted by the court so as to avert the enforcement.
Section 869 Enforced auction and receivership
The enforced auction and receivership have been provided for in a separate law.
Section 870 Rights equivalent to real estate
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The rules governing compulsory enforcement against plots of real estate shall apply mutatis mutandis to compulsory enforcement against an entitlement governed by the rules applying to plots of real estate.
Section 870a Compulsory enforcement against a ship or a ship under construction
(1) Compulsory enforcement against a ship entered in the register of ships, or against a ship under construction entered in the register of ships under construction, or that is eligible for entry in such register, shall be effected by the entry of a maritime mortgage regarding the claim or by enforced auction. Ordering the enforced auction of an ocean-going vessel is inadmissible where said vessel is travelling and not lying at harbour. (2) Section 866 subsections (2) and (3), section 867 shall apply mutatis mutandis. (3) Should an enforceable judgment reverse the decision to be enforced, or its provisional enforceability, or should compulsory enforcement be declared inadmissible or directions be issued for it to be terminated, the maritime mortgage shall expire; section 57 (3) of the Act Governing Rights in Registered Ships and Ships under Construction (Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken) dated 15 November 1940 (Law Gazette of the Reich (Reichsgesetzblatt, RGBl.) I page 1499) is to be applied. The same shall apply where a court decision directs the temporary stay of the enforcement and, at the same time, abrogates the enforcement activities taken, or where security is provided or lodgment made as permitted by the court in order to avert the enforcement.
Section 871 Reservations under Land law applying to railway operations
The stipulations of Land law shall remain unaffected, according to which the rights of use and certain objects dedicated to the railway operation or local railway line form part of the immovable property with a view to compulsory enforcement if a party other than the owner of a railway operation or a local railway line operates the railway operation or local railway line based on its right of use, and according to which compulsory enforcement has been provided for in derogation from the stipulations of the laws of the Federal Republic.
Title 4 Distribution proceedings
Section 872 Prerequisites
The proceedings for the distribution of assets available for creditors is an available remedy if the amount of money lodged in the course of compulsory enforcement against the movable property is not sufficient to satisfy the creditors involved.
Section 873 Request made by the court responsible for the distribution of assets
Upon receiving the notification as regards the overall factual situation, the local court (Amtsgericht, AG) responsible (sections 827, 853, 854) is to deliver a notice to each of the creditors involved requesting that they submit a calculation of their respective claim in terms of principal, interest, costs, and other ancillary claims within two (2) weeks.
Section 874 Distribution plan
(1) Following expiry of the two-week periods, the court shall prepare a distribution plan. (2) The amount of the costs of the proceedings is to be deducted in advance from the existing assets. (3) The claim of a creditor, who has failed to comply with the request issued to him by the court by the date of the distribution plan being prepared, shall be calculated in accordance with the notification and its documents. The claim may not be amended retroactively.
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Section 875 Determination of a hearing date by the court
(1) The court is to determine a hearing date at which the parties may state their positions regarding the distribution plan and at which the distribution is to be implemented. The distribution plan must be deposited for inspection by the parties involved with the court registry no later than three (3) days prior to the hearing. (2) It is not necessary to summon the debtor to the hearing if such summons were to be served abroad or by publication.
Section 876 Hearing for declaration and implementation
If no opposition is lodged against the plan at the hearing, it is to be implemented. If an opposition is lodged, each of the creditors involved is to immediately react in substance. Should the opposition lodged be acknowledged by the parties involved as having merit, or should an agreement be reached otherwise, the plan is to be corrected accordingly. Where an opposition cannot be conclusively dealt with, the plan shall be implemented insofar as it is not affected by the opposition.
Section 877 Consequences of a failure to comply with procedural rules
(1) Should a creditor have failed to make an appearance at a hearing and have likewise failed to lodge an opposition with the court prior to the hearing, it is assumed to his detriment that he agrees to the plan being implemented. (2) If a creditor who has failed to make an appearance at a hearing is involved in the opposition lodged by another creditor, it is assumed that he does not acknowledge this opposition to have merit.
Section 878 Action brought in support of an opposition lodged
(1) The creditor lodging an opposition must submit evidence to the court, without a prior request needing to be made, and doing so within a period of one (1) month beginning on the date of the hearing, that he has brought proceedings in court against the creditors involved. Once this deadline has expired without success, the court shall direct the plan to be implemented without consideration of the opposition lodged. (2) The authority of the creditor opposing the plan to enforce a better right against the creditor who has received an amount of money under the plan by way of bringing a corresponding court action, is not ruled out should he have failed to adhere to the period, nor is it ruled out by the implementation of the plan.
Section 879 Court competent for the action brought in support of the opposition
(1) The action is to be brought with the court responsible for the distribution of assets and, where the local courts (Amtsgerichte, AG) are not competent for the subject matter of the litigation, with the regional court (Landgericht, LG), in the district of which the court responsible for the distribution of assets has its seat. (2) The regional court (Landgericht, LG) shall have jurisdiction for the entirety of all actions brought if its competence, based on the content of the oppositions entered in the hearing without having been dealt with conclusively, it has jurisdiction for one single action alone, unless the entirety of all creditors involved agree that the court responsible for the distribution of assets is to decide on all instances in which an opposition was entered.
Section 880 Content of the ruling
The ruling handed down on the opposition entered is to likewise determine the amounts in which the portion of the assets that is at issue is to be paid out to which creditors. Should this
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not be deemed appropriate, the judgment is to order a new plan to be prepared, as well as new proceedings for the distribution of assets available for execution creditors.
Section 881 Default judgment
The default judgment against a creditor who has entered an opposition is to be delivered to the effect that the opposition is to be deemed retracted.
Section 882 Procedure following the ruling
Based on the ruling delivered, the court responsible for the distribution of assets shall direct the disbursement of the assets, or the other proceedings for the distribution of assets available for execution creditors.
Title 5 Compulsory enforcement against legal persons under public law
Section 882a Compulsory enforcement for a monetary claim
(1) Unless rights in rem are being pursued, compulsory enforcement for a monetary claim against the Federation or against a Land may commence only four (4) weeks following the time at which the creditor has given notice, to the public authority authorised to represent the debtor, of his intention to pursue compulsory enforcement and, to the extent such compulsory enforcement is to be effected against assets managed by another public authority, to the responsible Minister of Finance. Upon this being demanded, the receipt of the notice is to be confirmed to the creditor. Insofar as compulsory enforcement is to be implemented by the court-appointed enforcement officer in such cases, the enforcement officer is to be determined, upon the creditor filing a corresponding petition, by the court responsible for execution. (2) Compulsory enforcement is not admissible against objects that are indispensible for the performance by the debtor of tasks governed by public law, or the disposition over which is contravened by public interest. In the event of a dispute, the matter of whether or not the prerequisites set out in sentence 1 have been met shall be decided on pursuant to section 766. Prior to the decision being handed down, the responsible minister is to be heard. (3) The stipulations of subsections (1) and (2) are to be applied to compulsory enforcement against corporations, institutions, and foundations under public law, subject to the proviso that the legal representatives shall take the stead of the public authority in the sense as used in subsection (1). The limitations of subsections (1) and (2) shall not apply to banks and loan institutions under public law. (4) (repealed) (5) If the matter concerns the execution of an injunction, the requirements of providing an advance notice of compulsory enforcement and of the waiting period set out in subsections (1) and (3) need not be complied with.
Title 6 List of debtors
Section 882b Content of the list of debtors
(1) The central court responsible for execution pursuant to section 882h (1) shall keep a register (list of debtors) of those persons
1. Whose entry in the list the court-appointed enforcement officer has instructed subject to the stipulations of section 882c;
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2. Whose entry the enforcement authority has instructed subject to the stipulations of section 284 (9) of the Fiscal Code (Abgabenordnung, AO); the instructions by an enforcement authority to enter a debtor in the list of debtors shall be equivalent to an order for entry in same pursuant to section 284 (9) of the Fiscal Code (AO) where such instructions have been issued based on an equivalent provision of federal law or Land law.
3. Whose entry the insolvency court has instructed subject to the stipulations of section 26 (2) or of section 303a of the Insolvency Statute (Insolvenzordnung, InsO).
(2) The list of debtors shall provide the following:
1. Name, first name, and name at birth of the debtor, as well as the company name and the number of the registry folio on which the debtor is entered in the Commercial Register,
2. Date and place of birth of the debtor,
3. Residences of the debtor or the debtor’s registered seat,
including any deviating personal data. (3) Furthermore, the list of debtors shall provide:
1. The reference number and the court or enforcement authority responsible for the enforcement matter or the insolvency proceedings,
2. In the case of subsection (1) no. 1, the date on which the instructions were issued to enter the debtor in the list and the reason pursuant to section 882c giving rise to the entry,
3. In the case of subsection (1) no. 2, the date on which the instructions were issued to enter the debtor in the list and the reason pursuant to section 284 (9) of the Fiscal Code (Abgabenordnung, AO), or pursuant to an equivalent provision in the sense of subsection (1) no. 2, second clause of the sentence, giving rise to the entry,
4. In the case of subsection (1) number 3, the date on which the instructions were issued to enter the debtor in the list of debtors, as well as the determination that a request to open insolvency proceedings on the debtor’s assets has been refused for insufficiency of assets pursuant to section 26 (1), first sentence, of the Insolvency Statute (Insolvenzordnung, InsO), or, in the event of an entry being made pursuant to section 303a of the Insolvency Statute, the reason based on which such an entry is made and the date on which the insolvency court handed down the decision.
Section 882c Instructions to enter a debtor in the list of debtors
(1) The competent court-appointed enforcement officer shall issue instructions ex officio to have the debtor entered in the list of debtors if
1. The debtor has failed to comply with his obligation to provide information on his financial circumstances and assets;
2. According to the content of the schedule of assets, the enforcement manifestly would not be suited to achieve the full satisfaction of the creditor based on whose application the information on the debtor’s financial circumstances and assets was provided, or to whom the information so provided was forwarded; or
3. The debtor fails to prove to the enforcement officer, within one (1) month of having provided the information on his financial circumstances and assets, or within one (1) month of having been notified of the forwarding of the schedule of assets pursuant to
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section 802d (1), second sentence, that the creditor has been fully satisfied based on whose application the information on the debtor’s financial circumstances and assets was provided, or to whom the information so provided was forwarded. This shall not apply for as long as a payment plan has been determined pursuant to section 802b and this plan has not become invalid.
(2) The grounds for issuing instructions to have the debtor entered in the list of debtors are to be provided briefly. This reasoning is to be served on the debtor, unless he has been informed of the grounds orally and they have been included in the record (section 763). (3) The instructions to have the debtor entered in the list of debtors are to include the data set out in section 882b subsections (2) and (3). Where the court-appointed enforcement officer is not aware of the data to be included in the list of debtors pursuant to section 882b (2) nos. 1 through 3, he shall obtain such information from the authorities set out in section 755 subsections (1) and (2), first sentence, no. 1, or by inspecting the Commercial Register.
Section 882d Enforcement of the instructions to enter a debtor in the list of debtors
(1) The debtor may lodge an opposition against the instructions to have him entered in the list of debtors pursuant to section 882c within two (2) weeks from the date of issuance, doing so with the competent court responsible for execution. The opposition shall not suspend the enforcement. Once the period set out in the first sentence has expired, the court-appointed enforcement officer shall forward by electronic means the instructions, without undue delay, to the central court responsible for execution pursuant to section 882h (1). This court shall arrange the entry of the debtor in the list of debtors. (2) Upon the debtor filing a corresponding application, the court responsible for execution may instruct that the entry be temporarily stayed. The central court responsible for execution pursuant to section 882h (1) is to refrain from entering the debtor in the list of debtors if the executed copy of an enforceable decision is submitted to it showing that the instructions to enter the debtor in the list of debtors have been temporarily stayed. (3) The debtor is to be instructed on the remedies available to him, pursuant to subsections (1) and (2), upon the instructions to have him entered in the list of debtors being issued. The court that has decided on the remedies shall electronically transmit its decision to the central court responsible for execution pursuant to section 882h (1).
Section 882e Cancellation
(1) The central court responsible for execution pursuant to section 882h (1) shall cancel an entry made in the list of debtors upon expiry of three (3) years from the date of the instructions to enter a debtor in same. (2) The records clerk of the court registry shall decide on objections against the cancellation pursuant to subsection (1) or its denial. A reminder pursuant to section 573 may be filed against his decision. (3) In derogation from subsection (1), an entry shall be cancelled in accordance with the instructions issued by the central court responsible for execution pursuant to section 882h (1) if
1. It has been proven to said court that the creditor has been fully satisfied;
2. It has become known that the grounds for registering the debtor in the list of debtors do not exist or have ceased to exist;
3. The executed copy of an enforceable decision is submitted showing that the instructions to enter the debtor in the list of debtors have been repealed or temporarily stayed.
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(4) Where it becomes known to the court responsible for execution pursuant to section 882h (1) that the substance of an entry was deficient from the outset, the records clerk of the court registry shall modify the entry. Where the debtor or a third party is aggrieved by the modification of the entry, a reminder pursuant to section 573 may be filed against his decision.
Section 882f Inspection of the list of debtors
Anyone is permitted to inspect the list of debtors who demonstrates that he requires the information pursuant to section 882b:
1. For purposes of compulsory enforcement;
2. In order to fulfil statutory obligations to review economic reliability;
3. To review whether the prerequisites for public benefits to be granted are given;
4. In order to avert economic disadvantages that might result from debtors not fulfilling their payment obligations;
5. For purposes of criminal prosecution and the execution of sentences;
6. In order to obtain information about entries concerning himself. The information may be used only for the purpose for which it has been transmitted; once the purpose has been achieved, it is to be cancelled. Where such information is transmitted to non-public agencies, attention is to be drawn to this fact.
Section 882g Issuance of excerpts
(1) Upon corresponding application being made, excerpts from the list of debtors may be printed as hard copies on a regular basis, and may also be transmitted in a format readable only by machines. In the event the excerpts are transmitted in a format readable only by machines, the data transmission rules of the respective Land department of justice (Landesjustizverwaltung) shall apply. (2) The following parties will receive the excerpts:
1. Chambers of commerce and industry as well as corporations under public law, in which the members of a profession are associated by virtue of the law (chambers);
2. Claimants using the excerpts in order to establish and update non-public, centrally managed lists of debtors; or
3. Claimants whose legitimate interests cannot be sufficiently satisfied by granting them the right to inspect individual entries in the Land lists of debtors or by sending them lists pursuant to subsection (5).
(3) The excerpts are to be kept confidential and may not be made available to third parties. Upon the regular transmission of the excerpts ending, they are to be destroyed without undue delay and this information may no longer be provided. (4) The chambers may provide information to their members or the members of another chamber. Other parties receiving regular transmissions of excerpts may issue information to the extent this is part of their activities in keeping with regulations. Subsection (3) shall apply mutatis mutandis. The information may also be provided in automated retrieval procedures, to the extent such procedure is appropriate in view of the interests warranting protection of the affected parties and of the business purposes of the parties entitled to so retrieve such excerpts.
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(5) The chambers may bundle the excerpts in lists or may have third parties perform such task; they are to supervise said third parties in performing the task. Upon corresponding application being made, the chambers may be permitted to use the lists on a regular basis and to obtain transmission of the lists on a regular basis. Subsection (2) number 3 and subsection (3) shall apply mutatis mutandis to the regular transmission of the lists. The parties receiving the lists may provide information only to parties whose interests they are to represent by virtue of the law or based on a contract. (6) Section 882e subsection (1) shall apply mutatis mutandis to excerpts, lists, and records concerning an entry in the list of debtors that are based on the processing of excerpts or lists or on information regarding entries made in the list of debtors. The parties receiving the excerpts are to be notified of early cancellations from the list (section 882e (3)) within one (1) month. They shall notify the recipients of lists without undue delay (subsection (5), second sentence,). The entries are to be deleted without undue delay from the records prepared on the basis of the excerpts and lists. Likewise, the lists are to be destroyed without undue delay insofar as they are replaced by new lists. (7) In the cases provided for by subsection (2) numbers 2 and 3 as well as by subsection (5), section 38 of the Federal Data Protection Act (Bundesdatenschutzgesetz) shall apply to parties that are not governed by public law, subject to the proviso that the supervisory authority will also monitor the processing and use of these personal data as contained in files or as obtained from files. The same shall apply to any parties that are not governed by public law that have obtained information from the agencies set out in subsection (2). (8) The Federal Ministry of Justice is authorised to provide for the following, such provision being subject to approval by the Bundesrat and being made by statutory instrument:
1. To establish rules for the regular transmission of excerpts pursuant to subsections (1) and (2) and for the approval procedure, as well as regarding the regular transmission of lists pursuant to subsection (5);
2. To provide for the details of the establishment and structure of automated retrieval procedures pursuant to subsection (4), fourth sentence, in particular retrievals recording processes for the purpose of monitoring compliance with data protection rules;
3. To provide for the details of the issuance and storage of excerpts from the list of debtors; for the preparation, use and forwarding of lists; for the notice as to cancellations and the factual cancellation; for the declaration that a party is no longer eligible to receive regular transmissions of excerpts and lists; in order to safeguard the proper handling of notices, the protection of the excerpts and lists against unauthorised use, and the cancellation of entries in due time;
4. To provide for the levy of coercive penalty payments in order to enforce the obligations to destroy and cancel the excerpts, and for fines in the event the approval is revoked; the individual coercive penalty payment may not be levied in an amount in excess of 25,000 euros.
Section 882h Competence; structure of the list of debtors
(1) The list of debtors will be maintained for each Land by a central execution court. The content of the list of debtors may be inspected via a central internet query connecting to all Land databases. The Länder may confer upon the responsible agency of a Land the task of collecting and allocating the fees as well as other administrative tasks connected to the query. (2) The Land governments shall determine by statutory instrument which court is to perform the tasks of the central execution court pursuant to subsection (1). Section 802k (3) second and third sentences shall apply mutatis mutandis. The management of the list of debtors is a matter for which the Land department of justice (Justizverwaltung) is responsible.
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(3) The Federal Ministry of Justice is authorised to provide for the details concerning the format and transmission of the instructions to enter the debtor in the list of debtors pursuant to section 882b (1) and the decisions pursuant to section 882d (3), second sentence, of the present Code and section 284 (10), second sentence, of the Fiscal Code (Abgabenordnung, AO), or of equivalent provisions in the sense as defined by section 882b (1) number 2, second clause of the sentence of the present Code, as well as for the details concerning the content of the list of debtors and the manner in which it is inspected, in particular by an automated retrieval procedure; such provisions being subject to approval by the Bundesrat and being made by statutory instrument.. The statutory instrument is to establish suitable rules safeguarding data protection and data security. In particular, it is to be ensured that the data:
1. Are protected against unauthorised third parties obtaining knowledge in the course of their being transmitted to the central execution court pursuant to subsection (1), as well as during the transfer to the other agencies pursuant to subsection (2), second sentence;
2. Are reproduced as a whole and completely;
3. May be allocated at any time to their source; and
4. May be retrieved only by registered users specifying the intended use, with every retrieval being recorded, and with users becoming ineligible for an inspection of the data should they have retrieved or used data improperly in abuse of the law.
The data of users may be used only for the purposes set out in the third sentence number 4.
Chapter 3 Compulsory enforcement serving to obtain the surrender of objects or serving to
ensure that actions are taken or refrained from
Section 883 Surrender of specific movable objects
(1) If the debtor is to surrender a movable asset or a number of specific movable objects, the court-appointed enforcement officer is to take them away from the debtor and to physically submit them to the creditor. (2) Where the object to be surrendered is not found, the debtor is under obligation – upon the creditor having filed a corresponding petition – to declare for the records of the court, in lieu of an oath, that he is not in possession of the object and that he does not know where it is located. The court-appointed enforcement officer competent pursuant to section 802e shall summon the debtor to administer the statutory declaration in lieu of an oath. The stipulations of sections 478 to 480, of section 483, 802f (4), sections 802g through 802i and of section 802j subsections (1) and (2) shall apply mutatis mutandis. (3) The court may decide to change the statutory declaration in lieu of an oath to reflect the overall factual situation. (4) (repealed)
Section 884 Provision of a specific amount of fungible things
Should the debtor have to provide a specific number or amount of fungible things that in business dealings are customarily specified by number, measure, or weight, or should the debtor have to provide securities, the rule set out in section 883 (1) shall apply mutatis mutandis.
Section 885 Surrender of plots of real estate or ships
(1) Insofar as the debtor is to surrender an immovable property or a ship entered in the register of ships, or a ship under construction so entered in the register; or insofar as he is to
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grant permission to use such property, ship, or ship under construction; or insofar as he is to vacate them, the court-appointed enforcement officer is to remove the debtor from possession and is to put the creditor into possession. The court-appointed enforcement officer is to demand that the debtor provide an address at which documents may be served, or that he name an authorised recipient. (2) The court-appointed enforcement officer shall remove any movable objects that are not the subject of compulsory enforcement and shall physically submit them, or make them available, to the debtor or, if the debtor is absent, to an attorney-in-fact of the debtor, an adult family member, a person employed by the family, or to an adult permanent cohabitant. (3) Where neither the debtor nor one of the persons designated is present, or where acceptance is refused, the court-appointed enforcement officer is to take the objects designated in subsection (2) to the storage office for attached objects, or is to ensure their safekeeping in another way, doing so at the costs of the debtor. Movable objects in the safekeeping of which there is manifestly no interest are to be destroyed without undue delay. (4) Should the debtor fail to redeem the objects within a period of one (1) month following the vacation, the court-appointed enforcement officer shall dispose of them and shall lodge the proceeds. The court-appointed enforcement officer shall dispose of the objects and lodge the proceeds also in those cases in which the debtor has demanded return of the objects within a period of one (1) month without paying for the costs within a period of two (2) months following the vacation. Sections 806, 814 and 817 shall apply mutatis mutandis. Objects that cannot be realised shall be destroyed. (5) Objects exempted from attachment, and those objects for which it is not to be expected that their realisation will generate any proceeds, are to be surrendered at any time at the demand of the debtor without any further requirements needing to be met.
Section 885a Limited enforcement instructions
(1) The enforcement instructions may be limited to the measures pursuant to section 885 (1). (2) The court-appointed enforcement officer is to document in the record (section 762) the movable objects that are obviously perceivable when he takes the enforcement action. In preparing the documentation, he may create images in electronic format. (3) The creditor may at any time remove those of the movable objects that are not the subject of compulsory enforcement and is to keep them safe. He may at any time destroy movable objects in the safekeeping of which there is manifestly no interest. The creditor shall accept responsibility regarding the measures set out in the first and second sentences only insofar as wilful misconduct and gross negligence are involved. (4) Should the debtor fail to redeem the objects from the creditor within a period of one (1) month after the creditor has been put into possession, the creditor may realise the objects. Sections 372 through 380, 382, 383 and 385 of the Civil Code (Bürgerliches Gesetzbuch) are to be applied mutatis mutandis. No warning shall be issued that the objects may be sold at auction. Objects that cannot be realised may be destroyed. (5) Objects exempted from attachment, and those objects for which it is not to be expected that their realisation will generate any proceeds, are to be surrendered at any time at the demand of the debtor without any further requirements needing to be met. (6) Along with giving notice of the date set for the vacation of the premises, the court- appointed enforcement officer shall indicate to the creditor and to the debtor the stipulations made in subsections (2) through (5). (7) The costs pursuant to subsections (3) and (4) shall be deemed costs of the compulsory enforcement.
Section 886 Surrender in the case of a third party having custody and control
If an object to be surrendered is in the custody and control of a third party, the claim of the debtor to surrender of the object is to be transferred to the creditor, upon his having filed the
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corresponding petition, in accordance with the provisions governing the attachment and transfer of a monetary claim.
Section 887 Actions that may be taken by others
(1) Should the debtor fail to meet his obligation to take an action, where such action can be taken by a third party, the creditor is to be authorised by the court of first instance hearing the case, upon his having filed a corresponding petition, to have this action taken by a third party at the costs of the debtor. (2) Concurrently, the creditor may file the petition that the court sentence the debtor to make advance payment of the costs that will result from having a third party so take the action, notwithstanding the right to any supplementary claim. (3) The above rules are not to be applied to any compulsory enforcement serving to obtain the surrender or provision of objects.
Section 888 Actions that may not be taken by others
(1) Where an action that depends exclusively on the will of the debtor cannot be taken by a third party, and where a corresponding petition has been filed, the court of first instance hearing the case is to urge the debtor to take the action in its ruling by levying a coercive penalty payment and, for the case that such payment cannot be obtained, by coercive punitive detention, or by directly sentencing him to coercive punitive detention. The individual coercive penalty payment may not be levied in an amount in excess of 25,000 euros. The stipulations of Chapter 2 regarding detention shall apply mutatis mutandis to coercive punitive detention. (2) No warning shall be issued regarding the coercive measures. (3) These rules shall not be applied in those cases in which a person is sentenced to provide services under a service agreement.
Section 888a No enforcement of actions where there is a duty to pay compensation
If, in the case provided for by section 510b, the defendant has been sentenced to payment of compensation, any compulsory enforcement based on the stipulations of sections 887 and 888 is ruled out.
Section 889 Statutory declaration in lieu of an oath pursuant to civil law
(1) In cases in which, in accordance with the stipulations of civil law, the debtor has been sentenced to making a statutory declaration in lieu of an oath, this declaration shall be made before the local court (Amtsgericht, AG) as the court responsible for execution, in the district of which the debtor has his place of residence in Germany or, should he not have such a place of residence, where the debtor has his place of abode, and otherwise before the local court as the execution court, in the district of which the court of first instance hearing the case has its seat. The stipulations of sections 478 to 480 and section 483 shall apply mutatis mutandis. (2) Should the debtor fail to appear at the hearing determined for the statutory declaration in lieu of an oath to be made, or should he refuse to make such a statutory declaration in lieu of an oath, the execution court shall proceed as set out in section 888.
Section 890 Forcing the debtor to cease and desist from actions, or to tolerate actions
(1) Should the debtor violate his obligation to cease and desist from actions, or to tolerate actions to be taken, the court of first instance hearing the case is to sentence him for each count of the violation, upon the creditor filing a corresponding petition, to a coercive fine and, for the case that such payment cannot be obtained, to coercive detention or coercive detention of up to six (6) months. The individual coercive fine may not be levied in an amount
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in excess of 250,000 euros, and the coercive detention may not be longer than a total of two (2) years. (2) The sentence must be preceded by a corresponding warning that is to be issued by the court of first instance hearing the case, upon corresponding application being made, unless it is set out in the judgment providing for the obligation. (3) Moreover, upon the creditor having filed a corresponding petition, the debtor may be sentenced to creating a security for any damages that may arise as a result of future violations, such security being created for a specific period of time.
Section 891 Procedure; hearing of the debtor; ruling on the payment of costs
The decisions to be delivered pursuant to sections 887 to 890 are issued by a court order. The debtor is to be heard prior to the decision being delivered. Sections 91 to 93, 95 to 100, 106, and 107 shall apply mutatis mutandis to the ruling on the payment of costs.
Section 892 Resistance by the debtor
Should the debtor resist an action being taken, which he is to tolerate pursuant to the stipulations of sections 887 and 890, the creditor may involve a court-appointed enforcement officer in order to deal with such resistance, which enforcement officer is to proceed in accordance with the stipulations of section 758 subsection (3) and of section 759.
Section 892a (repealed)
Section 893 Action brought for performance of the equivalent in money
(1) The stipulations of the present Chapter do not affect the right of the creditor to demand performance of the equivalent in money. (2) The creditor is to enforce his claim to performance of the equivalent in money by filing a corresponding court action with the court of first instance hearing the case.
Section 894 Fiction of a declaration of intent having been made
Where the debtor has been sentenced to make a declaration of intent, such declaration shall be deemed to have been made as soon as the judgment has attained legal force. Where the declaration of intent depends on counter-performance being made, this effect shall occur as soon as an enforceable execution copy of the final and binding judgment has been issued in accordance with the stipulations of sections 726 and 730.
Section 895 Declaration of intent for the purpose of entering it in a register in the event of
provisionally enforceable judgments Where the debtor has been sentenced, in a provisionally enforceable judgment, to make a declaration of intent, based on which an entry is to be made in the land register, the register of ships, or the register of ships under construction, the entry of a priority notice or of an opposition shall be deemed approved. The priority notice or the opposition shall expire once the judgment is reversed by an enforceable judgment.
Section 896 Issuance of records or documents to the creditor
Insofar as an entry is to be made in a public book or register on the basis of a judgment substituting a declaration of intent by the debtor, the creditor may demand, in the stead of the debtor, that the records or documents designated in section 792 be issued, insofar as the creditor requires these records or documents in order to obtain the entry in the book or register.
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Section 897 Transfer of ownership; creation of charges on real property
(1) Should the debtor have been sentenced to transferring ownership or to creating a right to a movable object, the object shall be deemed to have been physically submitted where the court-appointed enforcement officer has taken away the object for the purpose of delivering it to the creditor. (2) The same shall apply to the physical submission of the mortgage certificate, of the certificate of the charge on land, or of the certificate of the annuity charge on land if the debtor has been sentenced to creating a mortgage, charge on land, or annuity charge on land, or if he has been sentenced to assigning or encumbering a mortgage claim, charge on land, or annuity charge on land.
Section 898 Acquisition in good faith
The stipulations of civil law are to be applied to the benefit of those parties deriving rights from a person having no authority in this regard where an acquisition takes place pursuant to sections 894 and 897.
Chapter 4 (repealed)
Sections 899 to 915h (repealed)
Chapter 5 Seizure and injunction
Section 916 Claim to seizure
(1) Seizure is a remedy serving to secure compulsory enforcement against movable or immovable property for a monetary claim or a claim that may evolve to become a monetary claim. (2) The admissibility of a seizure is not ruled out by the fact that the claim is subject to conditions or has a fixed maturity date, unless the claim so subject to conditions does not have any current asset value in light of the remote possibility of the condition in fact occurring.
Section 917 Grounds for a writ of seizure to be issued in the case of seizure against the assets of
a potential debtor (1) Seizure is an available remedy wherever there is the concern that without a writ of pre- judgment seizure being issued, the enforcement of the judgment would be frustrated or be significantly more difficult. (2) It is to be deemed sufficient grounds for a writ of seizure to be issued if the judgment would have to be enforced abroad and reciprocity has not been granted. No grounds for a writ of seizure need be given if the seizure is being implemented solely by way of securing the compulsory enforcement against a ship.
Section 918 Grounds for a writ of seizure to be issued in the case of a debtor being arrested in
person Arresting a debtor in person is an available remedy only if this is required in order to ensure compulsory enforcement against the property of the debtor when such compulsory enforcement is at risk.
Section 919 Court responsible for the seizure
Both the court before which the main action is being pursued as well as the local court
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(Amtsgericht, AG) in the district of which the object to be seized or the person whose personal liberty is to be limited are situate or resident shall be responsible for issuing the writ of seizure.
Section 920 Request for writ of seizure
(1) The request is to set out the designation of the claim, specifying the amount of money or the monetary value, as well as the grounds for a writ of seizure to be issued. (2) The claim and the grounds for a writ of seizure to be issued are to be demonstrated to the satisfaction of the court. (3) The request may be recorded with the registry for the files of the court.
Section 921 Decision regarding the request for a writ of seizure
Insofar as the claim or the grounds for a writ of seizure to be issued have not been demonstrated to its satisfaction, the court may issue a writ of seizure, provided that security is provided for the disadvantages that the opponent risks suffering. The court may make the issuance of the writ of seizure dependent on security being provided even if the claim and the reasons for a writ of seizure to be issued have been demonstrated satisfactorily.
Section 922 Judgment ordering seizure and order of seizure
(1) The decision regarding the request shall be delivered by a final judgment if the matter is dealt with in a hearing for oral argument, and in all other cases by a court order. Where a decision ordering the seizure is to be enforced abroad, the decision is to cite the reasons on which it is based. (2) The party that has obtained the court order of seizure is to have that order served. (3) The court order dismissing the request for a writ of seizure or declaring that security must first be provided shall not be communicated to the opponent.
Section 923 Authorisation to avert enforcement
The writ of seizure is to determine an amount of money that, if lodged, will suspend the enforcement of the seizure and will entitle the debtor to file a petition for the enforced seizure to be set aside.
Section 924 Opposition
(1) Filing an opposition against the court order directing the seizure is an available remedy. (2) In its opposition, the party filing it is to demonstrate the grounds that it intends to assert in order for the seizure to be set aside. The court is to schedule a hearing for oral argument ex officio. Where the court responsible for the seizure is a local court (Amtsgericht, AG), the opposition shall be lodged in writing, or it is to be recorded with the registry for the files of the court, citing the grounds that are to be asserted as the basis on which the seizure is to be set aside. (3) Lodging an opposition will not suspend the enforcement of the seizure. However, the court may issue an interim order pursuant to section 707; section 707 (1), second sentence, shall not be applied.
Section 925 Decision following an opposition having been lodged
1) In cases in which an opposition is lodged, a final judgment is to decide on whether or not the seizure is lawful. (2) The court may confirm the seizure as a whole or in part, may modify or repeal it, and may also make the confirmation, modification, or repeal dependent on security being provided.
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Section 926 Order as to proceedings having to be brought in the courts
(1) If the main action is not pending, the court responsible for the seizure is to order, upon corresponding application being made and without holding a hearing for oral argument, that the party having obtained the writ of seizure is to bring proceedings in the courts within a period to be determined. (2) Should this order not be complied with and a corresponding application be made, the seizure is to be set aside in a final judgment.
Section 927 Seizure set aside due to a change in circumstances
(1) Also after the seizure has been confirmed, a petition may be filed for it to be set aside due to a change in circumstances, in particular because the reasons for the writ of seizure to be issued have been conclusively dealt with, or because an offer has been made to provide security. (2) The decision is to be delivered by a final judgment; it shall be issued by the court ordering the seizure and, where the main action is pending, by the court before which the main action is being pursued.
Section 928 Enforcement of the seizure
The rules governing compulsory enforcement shall apply mutatis mutandis to the enforcement of the seizure unless otherwise provided for by the sections hereinbelow.
Section 929 Court certificate of enforceability; enforcement period
(1) A writ of seizure shall require a court certificate of enforceability only if it is to be enforced for a different creditor than the creditor designated in the writ of seizure, or against a different debtor than the debtor designated in the writ of seizure. (2) The enforcement of the writ of seizure is no longer an available remedy if one (1) month has lapsed since the date on which the writ of seizure was issued or on which it was served on the party at the request of which it was issued. (3) The enforcement may admissibly be pursued prior to the writ of seizure being served on the debtor. However, it shall be without effect if the writ of seizure is not served within one (1) week following the enforcement and prior to the expiry of the period determined for same in the preceding subsection.
Section 930 Enforcement against movable property and receivables
(1) The seizure of movable property is enforced by attachment. The attachment shall be implemented in accordance with the same principles as any other attachment; it creates a security right having the effects set out in section 804. The court responsible for the seizure shall have jurisdiction, as execution court, for the attachment of receivables. (2) Any money that has been attached, and any amount of the proceeds accruing to the creditor in the course of the proceedings for the distribution of assets available for creditors, will be lodged. (3) The court responsible for execution may direct, upon corresponding application being made, that a movable asset of a physical nature be sold at auction if it is subject to the risk of a significant loss of value or if its storage would entail unreasonable costs, and that the proceeds be lodged. (4) Enforcing seizure against an unregistered ocean-going vessel is inadmissible where the vessel is travelling and not lying at harbour.
Section 931 Enforcement against a registered ship or a registered ship under construction
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(1) The enforcement of the seizure against a ship entered in the register of ships, or against a ship under construction so entered in the register, is effected by attachment in accordance with the rules governing the attachment of movable property, with the following departures from the rule applying as set out hereinbelow. (2) The attachment establishes a security right to the ship, or ship under construction, that has been attached; such security right grants the creditor the same rights, in the relationship to other rights, as a maritime mortgage would grant him. (3) Upon the creditor filing a corresponding petition, the attachment is directed by the court responsible for the seizure acting as execution court; concurrently, the court is to request that the court maintaining the register enter a priority notice in the register of ships or register of ships under construction, such priority notice serving to secure the security right of a seizure creditor; the priority notice shall expire if the enforcement of the seizure ceases to be an available remedy. (4) Upon attachment of the ship or ship under construction, the court-appointed enforcement officer is to take the ship or ship under construction into his custody and safekeeping. (5) If, at the time the seizure of the ship or ship under construction is enforced, the enforced auction of the ship or ship under construction has been initiated, the confiscation of the ship or ship under construction implemented in this procedure shall be deemed to be the first attachment in the sense as defined by section 826; the copy of the attachment record is to be submitted to the execution court. (6) Upon the creditor filing a corresponding petition, the security right of a seizure creditor is entered in the register of ships or register of ships under construction; the amount of money established pursuant to section 923 is to be designated as the maximum amount for which the ship or the ship under construction will be liable. In all other regards, and unless otherwise determined hereinabove, section 867 subsections (1) and (2) and section 870a (3) shall apply mutatis mutandis. (7) Enforcing seizure against a registered ocean-going vessel is inadmissible where the vessel is travelling and not lying at harbour.
Section 932 Seizure lien
(1) The enforcement of the seizure against a plot of real estate, or against an entitlement to which the rules concerning plots of real estate apply, shall be effected by registering a debt- securing mortgage for the receivable; the amount of money established pursuant to section 923 is to be designated as the maximum amount for which the plot of real estate or the entitlement will be liable. The creditor shall not be entitled pursuant to section 1179a or section 1179b of the Civil Code (Bürgerliches Gesetzbuch, BGB), nor shall the creditor of the debt-securing mortgage who has been entered in the land register be so entitled. (2) In all other regards, the stipulations of section 866 (3), first sentence, section 867 subsections (1) and (2), and of section 868 shall apply. (3) The application for entry of the mortgage shall be deemed to be, in the sense as defined by section 929 subsections (2) and (3), the enforcement of the writ of seizure.
Section 933 Enforcement of the personal arrest of a debtor
The enforcement of the personal arrest of a debtor shall be governed, where it is effected by an arrest, by the stipulations of sections 802g, 802h and 802j subsections (1) and (2) and, where it is effected by other limitations of his personal liberty, by the special orders to be issued by the court responsible for the seizure, which shall be subject to the restrictions of an arrest. The warrant for arrest shall set out the amount of money established pursuant to section 923.
Section 934 Setting aside the enforcement of the seizure
(1) Should the amount of money established in the writ of seizure be lodged, the
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enforcement of the seizure as effected shall be repealed by the execution court. (2) The execution court may also direct that the enforcement of the seizure be repealed if its continuation would require costs to be incurred, and the party upon the petition of which the enforcement of the seizure was ordered fails to make advance payment of the funds required. (3) The decisions mentioned in the present section are issued by a court order. (4) A complaint subject to a time limit may be filed against the order repealing the enforcement of the seizure.
Section 935 Injunction regarding the subject matter of the litigation
Injunctions regarding the subject matter of the litigation are an available remedy given the concern that a change of the status quo might frustrate the realisation of the right enjoyed by a party, or might make its realisation significantly more difficult.
Section 936 Application of the rules governing arrest
The rules regarding the order of writs of seizure and regarding the attachment procedure shall apply mutatis mutandis to the order of injunctions and the further procedure, unless the following sections set out deviating rules.
Section 937 Competent court
(1) That court shall be competent for ordering injunctions before which the main action is being pursued. (2) The decision may be issued without a hearing for oral argument being held in urgent cases, and also if the petition that an injunction be issued is to be dismissed.
Section 938 Content of the injunction
(1) The court shall determine at its sole discretion which orders are required in order to achieve the purpose intended. (2) The injunction may consist of a temporary deprivation of property (sequestration) and also in the opponent being required to take an action or being prohibited from taking it, in particular by prohibiting him from the sale, encumbrance, or pledge of a plot of real estate, of a registered ship, or of a ship under construction.
Section 939 Abrogation of an injunction against provision of security
The repeal of an injunction against provision of security is permissible only under special circumstances.
Section 940 Injunction serving to provide a temporary status
Injunctions are also admissible for the purpose of providing for a temporary status concerning a legal relationship that is in dispute, to the extent this provision is deemed to be necessary in order to avert significant disadvantages, to prevent impending force, or for other reasons, in particular in the case of legal relationships of a long-term nature existing.
Section 940a Vacation of residential premises
(1) The vacation of residential premises may be ordered by injunction only in the case of an unlawful interference with the possession of another, or in the case of a specific danger to life or limb. (2) The vacation of residential premises may be ordered by injunction also against a third party that is in possession of the rented premises if an enforceable eviction order exists
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against the lessee and the lessor has become aware of the third party having entered into possession only after the hearing for oral argument has been closed. (3) Where an action has been brought for the vacation of premises due to payments having been defaulted on, the vacation of residential premises may be ordered by injunction also if the defendant fails to comply with a court order for securitisation (section 283a) in the proceedings of the main action. (4) In the cases of subsections (2) and (3), the court is to hear the opponent prior to issuing an eviction order.
Section 941 Requests for entries to be made in the land register etc.
Where, based on an injunction, an entry is to be made in the land register, the register of ships, or the register of ships under construction, the court is authorised to request that the land registry or the authority keeping the register make the corresponding entry.
Section 942 Competence of the local court in the district of which the object is located
(1) In urgent cases, the local court (Amtsgericht, AG) in the district of which the object of the litigation is located may deliver an injunction that determines the period within which the petition for the summons of the opponent to the hearing regarding the legal validity of the injunction is to be filed with the court responsible for the main action. (2) The local court (Amtsgericht, AG) may deliver the injunction based on which a priority notice is to be entered in the land register, the register of ships, or the register of ships under construction, or an opposition challenging the correctness of such register, in the district of which the plot of real estate is situate, or the home port or home city of the ship, or the location at which the ship under construction is located, even if the case is not deemed urgent; in cases in which the ship’s home port is not located in Germany, the injunction may be delivered by the local court in Hamburg. The period designated in subsection (1) is to be determined only upon corresponding application being made by the opponent. (3) Once the deadline has expired without success, the local court (Amtsgericht, AG) is to repeal the ruling delivered upon corresponding application being made. (4) The decisions by the local court mentioned in the present section are issued by a court order.
Section 943 Court responsible for the main action
(1) The court responsible for the main action in the sense as defined by the rules of this Chapter shall be deemed to be the court of first instance and, if the main action is pending in the appellate instance on fact and law, this shall be deemed to be the court of appeal. (2) The court before which the main action is being pursued shall have exclusive jurisdiction for the orders to be issued pursuant to section 109 if the main action is or was pending.
Section 944 Decision of the presiding judge in urgent cases
In urgent cases, the presiding judge may decide, instead of the court, on the requests mentioned in this Chapter, provided that they need not be dealt with in a hearing.
Section 945 Obligation to compensate for damages
Should the order of a seizure or an injunction prove to have been unfounded from the start, or should the measure directed be repealed pursuant to section 926 subsection (2) or section 942 (3), the party that has obtained the order is under obligation to compensate the opponent for the damages that he has suffered as a result of the measure directed having been enforced, or as a result of the opponent having provided security in order to avert the enforcement or to obtain the repeal of the measure.
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Section 945b Authorisation to issue statutory instruments
The Federal Ministry of Justice is to make more detailed determinations by statutory instrument, subject to approval by the Bundesrat, as regards the establishment of the register and the keeping of same, the application for entry in the register of writs of protection, the retrieval of writs of protection from said register, the charging of fees, as well as the details of communicating and storing data and the particulars of data security and eAccessibility.
Sections 946 to 1024 (repealed)
Book 10 Arbitration proceedings
Chapter 1 General regulations
Section 1025 Scope of application
(1) The rules of the present Book are to be applied where the venue of the arbitration proceedings in the sense as defined by section 1043 (1) is located in Germany. (2) The stipulations of sections 1032, 1033 and 1050 are to be applied also in those cases in which the venue of the arbitration proceedings is located abroad or has not yet been determined. (3) For as long as the venue of the arbitration proceedings has not yet been determined, the German courts shall be competent for exercising the court tasks designated in sections 1034, 1035, 1037, and 1038, provided the defendant or the plaintiff has its registered seat or his habitual place of abode in Germany. (4) Sections 1061 to 1065 shall apply to the recognition and enforcement of foreign arbitration awards.
Section 1026 Scope of the activities that a court may pursue
A court may take action in the matters provided for by sections 1025 to 1061 only insofar as provided for by this Book.
Section 1027 Loss of the right to file objections
Insofar as a provision of the present Book, from which the parties to a dispute may deviate, has not been complied with, or a requirement agreed in the arbitration proceedings has not been met, a party that has failed to object to this irregularity without undue delay, or within a period set for such objections, may not assert this objection later. This shall not apply where the party was not aware of the irregularity.
Section 1028 Receipt of written communications by a party whose whereabouts are unknown
(1) Should the whereabouts of a party or of a person authorised to receive written communications be unknown, such communications shall be deemed to have been received, unless the parties to the dispute agree otherwise, on the date on which they could have been received at the last known postal address or place of business, or at the last known habitual place of abode of the recipient if mailed properly by registered letter with return receipt, or by any other means providing proof of service. (2) Subsection (1) is not to be applied to communications sent in court proceedings.
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Chapter 2 Arbitration agreement
Section 1029 Definition
(1) An arbitration agreement is an agreement by the parties that they subject themselves to the decision passed by an arbitral tribunal on all or individual disputes that have arisen between them or may arise in future as regards a specific legal relationship that is contractual or non-contractual in nature. (2) An arbitration agreement may be concluded in the form of an independent agreement (agreement as to arbitration) or in the form of a clause of an agreement (arbitration clause).
Section 1030 Eligibility for arbitration
(1) Any claim under property law may become the subject matter of an arbitration agreement. An arbitration agreement regarding non-pecuniary claims has legal effect insofar as the parties to the dispute are entitled to conclude a settlement regarding the subject matter of the dispute. (2) An arbitration agreement regarding legal disputes arising in the context of a tenancy relationship for residential space in Germany is invalid. This shall not apply to the extent the residential premises concerned are of the type determined in section 549 subsection (2) numbers 1 to 3 of the Civil Code (Bürgerliches Gesetzbuch, BGB). (3) Any stipulations of the law outside of the present Book, according to which disputes may not be subjected to arbitration proceedings, or only if specific prerequisites have been met, shall remain unaffected hereby.
Section 1031 Form of the arbitration agreement
(1) The arbitration agreement must be set out either in a document signed by the parties, or in letters, telefax copies, telegrams, or other forms of transmitting messages as exchanged by the parties, and that ensure proof of the agreement by supporting documents. (2) The requirement as to form stipulated by subsection (1) shall be deemed to have been met also in those cases in which the arbitration agreement is contained in a document transmitted by one party to another party, or by a third party to both parties, the content of which document is regarded, in the event an opposition is lodged late and in accordance with customary standards, to be the content of an agreement. (3) Where an agreement that is in compliance with the requirements as to form set out in subsection (1) or (2) makes reference to a document containing an arbitration clause, this establishes an arbitration agreement wherever the reference is made such that this clause is included as a component part of the agreement. (4) (repealed). (5) Arbitration agreements in which a consumer is involved must be contained in a record or document signed by the parties in their own hands. The written form as set out in the first sentence may be replaced by the electronic form pursuant to section 126a of the Civil Code (Bürgerliches Gesetzbuch, BGB). The record or document, or the electronic document may not contain agreements other than those making reference to the arbitration proceedings; this shall not apply if the agreement is recorded by a notary. (6) Any failure to comply with formal requirements shall be remedied by an appearance being made, in the hearing before the arbitral tribunal, on the merits of the case.
Section 1032 Arbitration agreement and proceedings brought before the courts
(1) Should proceedings be brought before a court regarding a matter that is subject to an arbitration agreement, the court is to dismiss the complaint as inadmissible provided the defendant has raised the corresponding objection prior to the hearing on the merits of the
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case commencing, unless the court determines the arbitration agreement to be null and void, invalid, or impossible to implement. (2) Until the arbitral tribunal has been formed, a petition may be filed with the courts to have it determine the admissibility or inadmissibility of arbitration proceedings. (3) Where proceedings are pending in the sense as defined by subsection (1) or (2), arbitration proceedings may be initiated or continued notwithstanding that fact, and an arbitration award may be handed down.
Section 1033 Arbitration agreement and preliminary measures taken by the court
An arbitration agreement does not rule out that a court may order, before or after arbitration proceedings have commenced, and upon a party having filed a corresponding petition, that a provisional measure or one serving to provide security be taken with regard to the subject matter of the dispute being dealt with in the arbitration proceedings.
Chapter 3 Formation of the arbitral tribunal
Section 1034 Composition of the arbitral tribunal
(1) The parties may agree on the number of arbitral judges. Absent such agreement, the number of arbitral judges shall be three. (2) If the arbitration agreement provides for one party to be more strongly represented in the composition of the arbitral tribunal, and this places the other party at a disadvantage, the latter party may file a petition with the court that it appoint the arbitral judge(s) in derogation from the appointment(s) made or the appointment provisions agreed. The petition is to be filed no later than the expiry of two (2) weeks after the party has become aware of the composition of the arbitral tribunal. Section 1032 (3) shall apply mutatis mutandis.
Section 1035 Appointment of arbitral judges
(1) The parties may agree on a procedure for the appointment of one or several arbitral judges. (2) Unless the parties to the dispute have agreed otherwise, a party shall be bound by the appointment of an arbitral judge that it has made as soon as the respective other party has received the notice of that arbitral judge’s appointment. (3) Absent an agreement by the parties providing for the appointment of the arbitral judges, the court shall appoint the individual arbitral judge, upon a party having filed a corresponding petition, if the parties to the dispute are unable to come to agreement regarding his appointment. In arbitration proceedings in which three (3) arbitral judges are involved, each of the parties shall appoint one (1) arbitral judge; these two (2) arbitral judges shall in turn appoint the third arbitral judge, who shall preside over the arbitral tribunal. Should a party have failed to appoint the arbitral judge within one (1) month of having received a corresponding notice from the other party, or should the two (2) arbitral judges be unable to come to agreement, within one (1) month of their having been appointed, regarding the third arbitral judge, the court is to appoint the third arbitral judge upon a party having filed a corresponding petition. (4) Where the parties to the dispute have agreed on a procedure for the appointment, and where one party does not adhere to this procedure, or where the parties to the dispute or the two (2) arbitral judges are unable to come to an agreement in accordance with the said procedure, or where a third party does not fulfil the tasks conferred upon it under the procedure, each party may file a petition with the court for it to order the required measure, unless the appointment procedure provides otherwise for ensuring an appointment. (5) In appointing an arbitral judge, the court is to consider all of the prerequisites required by the parties’ agreement for the arbitral judge and is to take account of all aspects by which the
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appointment of an independent and impartial arbitral judge is ensured. In appointing an individual arbitral judge or a third arbitral judge, the court is to also deliberate the option of whether appointing an arbitral judge of a different nationality than that of the parties might serve the intended purpose.
Section 1036 Recusal of an arbitral judge
(1) A person asked to serve as an arbitral judge is to disclose any and all circumstances that might give rise to doubts as to his impartiality. An arbitral judge is under obligation to disclose such circumstances to the parties without undue delay, also after his appointment and until the close of the arbitration proceedings, if he has failed to so inform them previously. (2) The appointment of an arbitral judge may be refused only if any circumstances give rise to justified doubts as to his impartiality or independence, or if he does not meet the prerequisites established by the parties. A party may recuse an arbitral judge whom it has itself appointed, or in the appointment of whom it has assisted, only for reasons of which it became aware only after he was appointed.
Section 1037 Recusal procedure
(1) Subject to the provisions made in subsection (3), the parties may agree on a procedure for the recusal of an arbitral judge. (2) Absent such agreement by the parties, the party intending to recuse an arbitral judge is to submit to the arbitral tribunal its grounds for wishing his recusal in writing, doing so within two (2) weeks of having become aware of the composition of the arbitral tribunal or of a circumstance in the sense as defined by section 1036 (2). Should the arbitral judge so recused refuse to resign from office, or should the other party not consent to the recusal, the arbitral tribunal shall rule on the recusal. (3) Should the recusal in accordance with the procedure agreed by the parties, or in accordance with the procedure set out in subsection (2) fail to meet with success, the party intending to recuse the arbitral judge may file a petition that the court take a decision on the recusal, doing so within one (1) month of having become aware of the decision by which the recusal was refused; the parties to the dispute may also agree on a different period. For the period during which such a petition is pending, the arbitral tribunal, including the arbitral judge who is to be recused, may continue the arbitration proceedings and may deliver an arbitration award.
Section 1038 Failure to act or impossibility of performing the tasks assigned
(1) Should an arbitral judge be unable to perform the tasks assigned to him, either legally or factually, or should he fail to perform the tasks assigned to him within a reasonable period for other reasons, then his appointment shall end upon his resigning from office or upon the parties to the dispute agreeing on his termination. Where the arbitral judge does not resign, or where the parties to the dispute are unable to agree on his termination, each of the parties may file a petition with the court to obtain a decision as to the termination of the arbitral judge’s appointment. (2) If an arbitral judge resigns in the cases set out in subsection (1) or section 1037 (2), or if a party consents to terminating his appointment as arbitral judge, this does not entail the recognition of the grounds for resignation set out in subsection (1) or section 1036 (2).
Section 1039 Appointment of a substitute arbitral judge
(1) In cases in which the appointment of an arbitral judge ends pursuant to sections 1037 or 1038, or due to his having resigned from office for another reason, or due to his having been recused by agreement of the parties, a substitute arbitral judge is to be appointed. The
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appointment shall be made in accordance with the rules that were to be applied to the appointment of the arbitral judge for whom a substitute is being appointed. (2) The parties may make an agreement in derogation herefrom.
Chapter 4 Competence of the arbitral tribunal
Section 1040 Authority of the arbitral tribunal to decide on its own competence
(1) The arbitral tribunal may decide on its own competence, and in this context also regarding the existence or the validity of the arbitration agreement. In this context, an arbitration clause is to be treated as an agreement independent of the other provisions of the agreement. (2) The objection as to a lack of competence of the arbitral tribunal is to be submitted by no later than the time at which the reply to the request for arbitration is made. A party shall not be prevented from raising such an objection because of its having appointed an arbitral judge, or because of its having assisted in his appointment. The objection as to the arbitral tribunal having exceeded its authorities is to be raised as soon as the matter with regard to which this allegation is being made is discussed in the arbitration proceedings. In either case, the arbitral tribunal may permit such an objection to be raised later if the party raising it provides sufficient excuse for such delay. (3) Where the arbitral tribunal believes it has competence, it shall rule on an objection raised pursuant to subsection (2) in an interim decision as a matter of principle. In such event, each of the parties may apply for a court decision to be taken, doing so within one (1) month of having received the written notice as to the interim decision. For the period during which such a petition is pending, the arbitral tribunal may continue the arbitration proceedings and may deliver an arbitration award.
Section 1041 Measures of temporary relief
(1) Unless the parties to the dispute have agreed otherwise, the arbitral tribunal may direct, upon a party having filed a corresponding petition, provisional measures or measures serving to provide security as it deems fit with a view to the subject matter of the litigation. The arbitral tribunal may demand, in connection with such measure, that each of the parties provide reasonable security. (2) Upon a party having filed a corresponding petition, the court may permit the enforcement of a measure pursuant to subsection (1), unless a corresponding measure of temporary relief has already been petitioned with a court. It may issue a differently worded order if this is required for the enforcement of the measure. (3) Upon corresponding application being made, the court may reverse or modify the order pursuant to subsection (2). (4) Should the order of a measure pursuant to subsection (1) prove to have been unfounded from the start, the party that has obtained its enforcement is under obligation to compensate the opponent for the damage it has suffered as a result of the measure being enforced, or as a result of his having provided security in order to avert the enforcement. The claim may be asserted in the pending arbitration proceedings.
Chapter 5 Implementation of the arbitration proceedings
Section 1042 General procedural rules
(1) The parties are to be accorded equal treatment. Each of the parties is to be given an effective and fair legal hearing. (2) Attorneys may not be prohibited from acting as attorneys-in-fact.
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(3) In all other cases, the parties to the dispute may themselves provide for the procedure, subject to the mandatory stipulations set out in the present Book, or by making reference to existing rules of arbitration. (4) Absent an agreement by the parties, and in those cases regarding which the present Book does not make any provisions, the procedural rules shall be determined by the arbitral tribunal at its sole discretion. The arbitral tribunal is authorised to decide on the admissibility of the taking of evidence, to so take evidence, and to assess the results at its sole discretion.
Section 1043 Venue of the arbitration proceedings
(1) The parties may make an agreement as to the venue of the arbitration proceedings. Absent such agreement, the arbitral tribunal shall determine the venue of the arbitration proceedings. In this context, the circumstances of the case including the suitability of the venue for the parties to the dispute are to be taken into account. (2) Unless otherwise agreed by the parties to the dispute, the arbitral tribunal may convene, notwithstanding the provisions made in subsection (1), at any venue it deems suitable for a hearing, and may do so in order to examine witnesses, experts, or the parties; for deliberations amongst its members; in order to inspect objects; or in order to review documents.
Section 1044 Commencement of the arbitration proceedings
Unless otherwise agreed by the parties to the dispute, the arbitration proceedings regarding a certain dispute shall commence on the date on which the defendant has received the petition to bring the matter before an arbitral tribunal. The petition must designate the parties as well as the subject matter of the litigation, and it must indicate that an arbitration agreement was concluded.
Section 1045 Language of the proceedings
(1) The parties may agree on the language(s) to be used in the arbitration proceedings. Absent such agreement, the arbitral tribunal shall determine the language of the proceedings. Unless otherwise provided for therein, the agreement of the parties or the determination by the arbitral tribunal shall govern regarding the written declarations submitted by a party, the hearings, arbitration awards, other decisions, and other communications of the arbitral tribunal. (2) The arbitral tribunal may direct that any evidence submitted in writing must be accompanied by a translation into the language(s) that the parties have agreed on or that the arbitral tribunal has determined.
Section 1046 Request for arbitration and reply to the request for arbitration
(1) Within the period determined by the parties or by the arbitral tribunal, the plaintiff is to present his claim and the facts on which this claim is based, and the defendant is to state his position in this regard. In this context, the parties may submit all documents that they deem significant, or they may designate any other evidence of which they intend to avail themselves. (2) Unless otherwise agreed by the parties to the dispute, each of the parties may modify or amend its request for arbitration in the course of the arbitration proceedings, or the means of challenge or defence it has submitted; this shall not apply if the arbitral tribunal refuses to admit such modifications or amendments due to insufficient excuse having been provided for the delay with which they are submitted. (3) Subsections (1) and (2) shall apply mutatis mutandis to any countercharges that may be brought.
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Section 1047 Hearing for oral argument; proceedings conducted in writing
(1) Subject to an agreement by the parties having been made, the arbitral tribunal shall decide whether the matter is to be dealt with in oral argument, or whether the proceedings are to be implemented on the basis of documents and other records. Where the parties to the dispute have not ruled out a hearing for oral argument, the arbitral tribunal is to hold such a hearing in the course of a suitable phase of the proceedings should a party file a corresponding petition. (2) The parties are to be informed in due time of any hearing and any assembly of the arbitral tribunal arranged for the purpose of taking evidence. (3) The respective other party is to be made aware of any written pleadings, documents, and other communications that a party may submit to the arbitral tribunal, while expert reports and other written evidence on which the arbitral tribunal may base its decision are to be sent to both parties for their information.
Section 1048 Failure by a party to comply with procedural rules
(1) Should the plaintiff fail to submit his request for arbitration pursuant to section 1046 (1), the arbitral tribunal shall terminate the proceedings. (2) Should the defendant fail to reply to the request for arbitration pursuant to section 1046 (1), the arbitral tribunal shall continue the proceedings, without the failure to comply with procedural rules as such being deemed to be an acknowledgment of the assertions made by the plaintiff. (3) Should a party fail to make an appearance at a hearing for oral argument, or should it fail to produce a document as evidence, the arbitral tribunal may continue the proceedings and may issue the arbitration award based on the insights it has obtained. (4) Where, according to the conviction of the arbitral tribunal, sufficient excuse has been provided by a party for its failure to comply with procedural rules, such failure shall not be taken into account. In all other cases, the parties to the dispute may agree otherwise as concerns the consequence of a failure to comply with procedural rules.
Section 1049 Expert appointed by the arbitral tribunal
(1) Unless otherwise agreed by the parties to the dispute, the arbitral tribunal may appoint one or several experts, who are to prepare a report regarding specific questions determined by the arbitral tribunal. Furthermore, the arbitral tribunal may ask a party to provide the expert with any information serving the purpose intended, or to produce or make available to him for his inspection any and all of the documents or objects that are relevant to the proceedings. (2) Unless otherwise agreed by the parties to the dispute, the expert is to attend a hearing for oral argument should a party file a corresponding petition, or should the arbitral tribunal believe this to be required, after he has submitted his written or oral report. At the hearing, the parties to the dispute may ask questions of the expert and may have experts they have themselves retained state their position regarding the matters at issue. (3) Sections 1036, 1037 subsection (1) and 2 shall apply mutatis mutandis to the experts appointed by the arbitral tribunal.
Section 1050 Support provided by the court in taking evidence and other actions reserved for
judges The arbitral tribunal or, with the consent of the arbitral tribunal, a party may file a petition that the court provide support by taking evidence or by taking any other actions reserved for judges that the arbitral tribunal is not authorised to take. The court shall deal with the petition, unless it deems it to be inadmissible, in accordance with its procedural rules as applying to the taking of evidence or any other actions reserved for judges. The arbitral
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judges are entitled to attend the court hearing at which evidence is taken and to ask questions.
Chapter 6 Arbitration award and conclusion of the proceedings
Section 1051 Applicable laws
(1) The arbitral tribunal is to decide on the matter in dispute in accordance with the statutory provisions that the parties have designated as being applicable to the content of the legal dispute. Unless the parties to the dispute have expressly agreed otherwise, the designation of the laws or the legal system of a specific state is to be understood as a direct referral to the rules of substantive law of this state, and not to its rules relating to the conflict of laws. (2) Where the parties to the dispute failed to determine which statutory provisions are to be applied, the arbitral tribunal is to apply the laws of that state to which the subject matter of the proceedings has the closest ties. (3) The arbitral tribunal is to take its decision based on considerations of what is fair and equitable only if the parties to the dispute have expressly authorised it to do so. The authorisation may be granted up until the time the arbitral tribunal takes such decision. (4) In all cases, the arbitral tribunal is to decide in accordance with the provisions of the agreement and is to take account of any commercial practices that may exist.
Section 1052 Decision by a panel of arbitral judges
(1) Unless otherwise agreed by the parties to the dispute, each decision taken by the arbitral tribunal in arbitration proceedings involving more than one arbitral judge is to be passed by a majority of the votes cast by all members of the tribunal. (2) Should an arbitral judge refuse to participate in such a vote, the other arbitral judges may decide on the matter without him, provided that the parties to the dispute have not agreed otherwise. The intention to vote on the arbitration award without the arbitral judge so refusing to participate in the vote is to be communicated to the parties beforehand. In the case of other decisions, the parties to the dispute are to be informed of the refusal to participate in the vote retroactively. (3) The presiding arbitral judge may decide on individual procedural issues alone if the parties to the dispute or the other members of the arbitral tribunal have correspondingly authorised him to do so.
Section 1053 Settlement
(1) Insofar as, in the course of the arbitration proceedings, the parties to the dispute reach a settlement regarding the dispute, the arbitral tribunal shall terminate the proceedings. Upon corresponding application being made by the parties, it shall record the settlement in the form of an arbitration award, the wording of which has been agreed by the parties, provided that the content of the settlement does not violate public order. (2) An arbitration award, the wording of which has been agreed by the parties, is to be delivered pursuant to section 1054 and must specify that it is an arbitration award. Such an arbitration award has the same effect as any other arbitration award regarding the dispute. (3) Insofar as declarations must be recorded by a notary in order to be effective, this requirement shall be replaced by an arbitration award in which the declarations of the parties are included by way of the parties agreeing on its wording. (4) Provided that the parties consent to this being done, an arbitration award, the wording of which has been agreed by the parties, may also be declared enforceable by a notary having his official residence in the district of the court that is competent for the declaration of enforceability pursuant to section 1062 subsections (1) and (2). The notary shall refuse to
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make such a declaration of enforceability where the prerequisites of subsection (1), second sentence, have not been met.
Section 1054 Form and content of the arbitration award
(1) The arbitration award is to be delivered in writing and is to be signed by the arbitral judge(s). In arbitration proceedings in which more than one arbitral judge was involved, the signature of the majority of all members of the arbitral tribunal shall correspond to the present formal requirement, provided that the reasons for which a signature is missing are specified. (2) The reasons for the arbitration award are to be provided unless the parties to the dispute have agreed that no reasons need be provided, or unless the parties have agreed on the wording of the arbitration award in the sense as defined by section 1053. (3) The arbitration award is to set out the date on which it was delivered and the venue of the arbitration proceedings determined pursuant to section 1043 (1). The arbitration award shall be deemed to have been delivered on that date and at that venue. (4) An arbitration award signed by the arbitral judges is to be transmitted to each of the parties.
Section 1055 Effects of the arbitration award
Amongst the parties, the arbitration award has the effect of a final and binding judgment handed down by a court.
Section 1056 Termination of the arbitration proceedings
(1) The arbitration proceedings are terminated upon the final and conclusive arbitration award being delivered, or by the arbitral tribunal issuing an order pursuant to subsection (2). (2) The arbitral tribunal determines the termination of the arbitration proceedings by issuing an order if:
1. The plaintiff:
a) Fails to submit his request for arbitration pursuant to section 1046 (1) and no case as provided for in section 1048 (4) is given; or
b) Withdraws the request for arbitration unless the defendant enters an opposition and the arbitral tribunal acknowledges that the defendant has a legitimate interest in conclusively resolving the dispute; or
2. The parties to the dispute agree on terminating the proceedings; or
3. The parties to the dispute no longer pursue the arbitration proceedings in spite of a corresponding request having been made by the arbitral tribunal, or it has become impossible for other reasons to continue the proceedings.
(3) Subject to the stipulations of section 1057 (2) and of sections 1058, 1059 (4), the arbitral tribunal’s appointment shall end upon the arbitration proceedings having ended.
Section 1057 Decision as to costs
(1) Unless the parties to the dispute have agreed otherwise, the arbitral tribunal is to decide, in its arbitration award, on the share of the costs of the arbitration proceedings that the parties to the dispute are to bear, including the costs accruing to the parties that were necessary in order to appropriately file a request for arbitration proceedings or to defend against such a request. In this context, the arbitral tribunal shall decide after having duly assessed the circumstances while taking account of the circumstances of the individual case, in particular the outcome of the proceedings.
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(2) Insofar as the costs of the arbitration proceedings have been established, the arbitral tribunal is to also decide in which amount the parties to the dispute are to bear such costs. Should the costs not have been determined, or should it be possible to determine them only after the termination of the arbitration proceedings, a separate arbitration award shall rule on that matter.
Section 1058 Correction, interpretation, and amendment of the arbitration award
(1) Each of the parties may file a petition with the arbitral tribunal that:
1. It correct computation errors, spelling mistakes, or typographical errors, or errors of a similar nature in the arbitration award;
2. It interpret specific parts of the arbitration award;
3. It deliver an amending arbitration award regarding those claims that, while they had been asserted in the arbitration proceedings, were not addressed in the arbitration award.
(2) Unless the parties to the dispute have agreed a different period, the petition is to be filed within one (1) month of the arbitration award having been received. (3) The arbitral tribunal is to decide on the correction or interpretation of the arbitration award within one (1) month, and on the amendment of the arbitration award within two (2) months. (4) The arbitral tribunal may correct the arbitration award also without a petition being filed. (5) Section 1054 is to be applied to the correction, interpretation, or amendment of the arbitration award.
Chapter 7 Legal remedies against the arbitration award
Section 1059 Petition for reversal of an arbitration award
(1) Only a petition for reversal of the arbitration award by a court pursuant to subsections (2) and (3) may be filed against an arbitration award. (2) An arbitration award may be reversed only if:
1. The petitioner asserts, and provides reasons for his assertion, that:
a) One of the parties concluding an arbitration agreement pursuant to sections 1029 and 1031 did not have the capacity to do so pursuant to the laws that are relevant to such party personally, or that the arbitration agreement is invalid under the laws to which the parties to the dispute have subjected it, or, if the parties to the dispute have not made any determinations in this regard, that it is invalid under German law; or that
b) He has not been properly notified of the appointment of an arbitral judge, or of the arbitration proceedings, or that he was unable to assert the means of challenge or defence available to him for other reasons; or that
c) The arbitration award concerns a dispute not mentioned in the agreement as to arbitration, or not subject to the provisions of the arbitration clause, or that it contains decisions that are above and beyond the limits of the arbitration agreement; however, where that part of the arbitration award referring to points at issue that were subject to the arbitration proceedings can be separated from the part concerning points at issue that were not subject to the arbitration proceedings, only the latter part of the arbitration award may be reversed; or where the petitioner asserts, and provides reasons for his assertion, that
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d) The formation of the arbitral tribunal or the arbitration proceedings did not correspond to a provision of this Book or to an admissible agreement between the parties, and that it is to be assumed that this has had an effect on the arbitration award; or if
2. The court determines that
a) the subject matter of the dispute is not eligible for arbitration under German law; or
b) The recognition or enforcement of the arbitration award will lead to a result contrary to public order.
(3) Unless the parties to the dispute agree otherwise, the petition for reversal must be filed with the court within a period of three (3) months. The period begins on the day on which the petitioner has received the arbitration award. In cases in which a petition has been filed pursuant to section 1058, the period shall be extended by at most one (1) month following receipt of the decision regarding this petition. The petition for reversal of the arbitration award may no longer be filed once a German court has declared the arbitration award to be enforceable. (4) If the reversal has been petitioned, the court may remand the matter to the arbitral tribunal where appropriate, as petitioned by a party, while reversing the arbitration award. (5) In cases of doubt, the reversal of the arbitration award will result in the arbitration agreement once again entering into force concerning the subject matter of the dispute.
Chapter 8 Prerequisites for the recognition and enforcement of arbitration awards
Section 1060 Domestic arbitration awards
(1) Compulsory enforcement is an available remedy provided the arbitration award has been declared enforceable. (2) The petition for a declaration of enforceability to be issued is to be denied, while reversing the arbitration award, if one of the grounds for reversal designated in section 1059 (2) is given. Such grounds for reversal shall not be taken into account insofar as a petition for reversal based on these grounds has been denied, in a final and binding judgment, at the time the petition for declaration of enforceability is received. Grounds for reversal pursuant to section 1059 (2) number 1 also shall not be taken into account if the periods determined in section 1059 (3) have expired, without the respondent having filed a petition for reversal of the arbitration award.
Section 1061 Foreign arbitration awards
(1) The recognition and enforcement of foreign arbitration awards is governed by the Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards (published in Federal Law Gazette (Bundesgesetzblatt, BGBl.) 1961 II page 121). The stipulations of other treaties concerning the recognition and enforcement of arbitration awards shall remain unaffected hereby. (2) Insofar as the declaration of enforceability is to be denied, the court shall determine that the arbitration award is not to be recognised in Germany. (3) Where the arbitration award is reversed abroad, after having been declared enforceable, a petition may be filed that the declaration of enforceability be repealed.
Chapter 9 Court proceedings
Section 1062 Jurisdiction
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(1) The higher regional court (Oberlandesgericht, OLG) designated in the arbitration agreement or, if no such designation was made, the higher regional court in the district of which the venue of the arbitration proceedings is located, is competent for decisions on petitions and applications regarding:
1. The appointment of an arbitral judge (sections 1034, 1035), the recusal of an arbitral judge (section 1037), or the termination of the office as arbitral judge (section 1038);
2. The determination of the admissibility or inadmissibility of arbitration proceedings (section 1032) or regarding the decision of an arbitral tribunal, in which the latter has affirmed its competence in an interim decision (section 1040);
3. The enforcement, reversal, or modification of orders providing for provisional measures or measures serving to provide security by the arbitral tribunal (section 1041);
4. The reversal (section 1059) or the declaration of enforceability of the arbitration award (sections 1060 et seq.), or the reversal of the declaration of enforceability (section 1061).
(2) If no venue for arbitration proceedings has been arranged in Germany in the cases provided for by subsection (1) number 2 first alternative, number 3 or number 4, that higher regional court (Oberlandesgericht, OLG) shall have jurisdiction in the district of which the respondent has his registered seat or his habitual place of abode, or in which assets of the respondent are located, or in which the object being laid claim to by the request for arbitration proceedings, or affected by the measure, is located; as an alternative, the higher regional court of Berlin (Kammergericht, KG) shall have jurisdiction. (3) In the cases provided for by section 1025 (3), that higher regional court (Oberlandesgericht, OLG) shall have jurisdiction in the district of which the plaintiff or the defendant has his registered seat or his habitual place of abode. (4) That local court (Amtsgericht, AG) shall be responsible for providing assistance in taking evidence and other actions reserved for judges (section 1050) in the district of which the said action is to be taken. (5) Where several higher regional courts (Oberlandesgerichte, OLG) have been established in a Land, the Land government is authorised to assign jurisdiction to a specific higher regional court or to the highest Land court, doing so by statutory instrument; the Land government may confer the authorisation upon the Land department of justice (Landesjustizverwaltung), doing so by statutory instrument. Several Länder may agree on the competence of the higher regional court across the boundaries separating them.
Section 1063 General regulations
(1) The court decides by court order. Prior to the decision, the opponent is to be heard. (2) The court is to order a hearing for oral argument to be held if the reversal of the arbitration award has been petitioned or if grounds for reversal pursuant to section 1059 (2) are conceivable in the case of a petition having been filed for the recognition or declaration of enforceability of the arbitration award. (3) The presiding judge of the Division for Civil Matters (Zivilsenat) may direct, without having previously heard the opponent, that the petitioner may pursue compulsory enforcement under the arbitration award until a decision has been delivered regarding the petition, or that he is allowed to enforce the provisional measures, or measures serving to provide security, ordered by the arbitral tribunal pursuant to section 1041. Compulsory enforcement under the arbitration award may not extend beyond measures serving to provide security. The respondent is authorised to avert compulsory enforcement by providing security in that amount in which the petitioner may pursue compulsory enforcement. (4) For as long as no hearing for oral argument has been arranged, petitions may be filed with the registry for the files of the court, and declarations may be recorded with it.
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Section 1064 Special aspects of declaring arbitration awards enforceable
(1) The arbitration award, or a certified copy of same, is to be enclosed with the petition for a declaration of enforceability of an arbitration award. The certification may also be performed by the attorney retained and authorised for the court proceedings. (2) The court order by which an arbitration award is declared enforceable is to be declared provisionally enforceable. (3) Subsections (1) and (2) are to be applied to foreign arbitration awards, unless otherwise provided for in treaties.
Section 1065 Appellate remedies
(1) The complaint on points of law is an available remedy against the decisions set out in section 1062 (1) numbers 2 and 4. In all other cases, the decisions delivered in the proceedings designated in section 1062 (1) are incontestable. (2) The complaint on points of law may also be based on the fact that the decision is based on a violation of a state treaty. Sections 707, 717 shall apply mutatis mutandis.
Chapter 10 Arbitral tribunals not governed by agreements
Section 1066 Application mutatis mutandis of the provisions made in Book 10
The stipulations of the present Book shall apply mutatis mutandis to the arbitral tribunals established, in a manner permissible under statute, by last wills or other rulings not based on an agreement.
Book 11 Judicial collaboration within the European Union
Chapter 1 Service of records or documents pursuant to Council Regulation (EC) No 1393/2007
Section 1067 Service of records or documents by diplomatic or consular missions
Any service intended to be performed in the Federal Republic of Germany pursuant to Article 13 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, and repealing Council Regulation (EC) No 1348/2000 (Official Journal L 324 page 79), is permissible only if the intended recipient of the record or document to be served is a citizen of the state from which the documents are being transmitted.
Section 1068 Service of records or documents by post
(1) The return receipt or equivalent proof shall be sufficient proof of the records or documents having been served pursuant to Article 14 of Council Regulation (EC) No 1393/2007. (2) A record or document regarding which a German receiving agency is to obtain or initiate service in the context of Article 7 (1) of Council Regulation (EC) No 1393/2007 may also be served by registered mail, return receipt requested.
Section 1069 Responsibilities
(1) For the service of records or documents abroad, the following bodies are responsible as the German transmitting agencies in the sense as defined by Article 2 (1) of Council Regulation (EC) No 1393/2007:
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1. The court interested in having the records or documents served, where they are court documents; and
2. That local court (Amtsgericht, AG) in the district of which the person interested in having the records or documents served has his place of residence or habitual place of abode, in those cases in which the documents are extrajudicial documents; in the case of notarial records or documents, this shall be the local court in the district of which the recording notary has his official residence; in the case of legal persons, their registered seat shall govern in lieu of the place of residence or the habitual place of abode; the Land governments may confer the tasks of a transmitting agency to one local court acting for the districts of several local courts, doing so by statutory instrument.
(2) For the service of records or documents in the Federal Republic of Germany, that local court (Amtsgericht, AG) in the district of which the record or document is to be served, shall be responsible, as the German receiving agency in the sense as defined by Article 2 (2) of Council Regulation (EC) No 1393/2007. The Land governments may assign the tasks of a transmitting agency to one local court acting for the districts of several local courts, doing so by statutory instrument. (3) The Land governments shall determine the agency that is responsible as the German central agency in the respective Land in the sense as defined by Article 3 first sentence of Council Regulation (EC) No 1393/2007, doing so by statutory instrument. The tasks of the central agency may be assigned, in each Land, only to a single agency. (4) The Land governments may confer the authority to issue a statutory instrument pursuant to subsection (1) number 2, subsection (2), second sentence, and subsection (3), first sentence, upon a supreme Land authority.
Section 1070 (repealed)
Section 1071 (repealed)
Chapter 2 Taking of evidence in accordance with Council Regulation (EC) No 1206/2001
Section 1072 Taking of evidence in the Member States of the European Union
Should evidence have to be taken in accordance with Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJEC number L 174 page 1), the court:
1. May directly request that the competent court of another Member State take the evidence; or
2. May request to take evidence directly in another Member State, subject to the prerequisites of Article 17 of Council Regulation (EC) No 1206/2001.
Section 1073 Participation rights
(1) The requesting German court or a member of the court correspondingly delegated may be present and involved, in the scope of application of Council Regulation (EC) No 1206/2001, when the requesting court’s request for the taking of evidence is dealt with by the requested court. The parties, their representatives as well as any experts retained may involve themselves in the respective proceedings in the scope in which they would be entitled to involve themselves in the respective proceedings were the evidence to be taken in Germany.
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(2) Any direct taking of evidence abroad pursuant to Article 17 (3) of Council Regulation (EC) No 1206/2001 may be performed by a member of the court or by any experts that the court may correspondingly charge.
Section 1074 Responsibilities pursuant to Council Regulation (EC) No 1206/2001
(1) For evidence to be taken in the Federal Republic of Germany, that local court (Amtsgericht, AG) in the district of which the procedural action is to be taken shall be responsible as the requested court in the sense as defined by Article 2 (1) of Council Regulation (EC) No 1206/2001. (2) The Land governments may assign the tasks of a requested court to one local court (Amtsgericht, AG) acting for the districts of several local courts, doing so by statutory instrument. (3) The Land governments shall determine by statutory instrument the agency that shall, in the respective Land:
1. Be responsible as the German central body in the sense as defined by Article 3 (1) of Council Regulation (EC) No 1206/2001;
2. Accept, as the competent body, any requests for the direct taking of evidence in the sense as defined by Article 17 (1) of Council Regulation (EC) No 1206/2001.
The tasks pursuant to numbers 1 and 2 may be assigned only to a single agency in each Land. (4) The Land governments may confer the authority to issue a statutory instrument pursuant to subsections (2) and (3), first sentence, upon a supreme Land authority.
Section 1075 Language of incoming requests
Requests for the taking of evidence submitted from a foreign counterpart, as well as communications pursuant to Council Regulation (EC) No 1206/2001, must be written in German, or must be accompanied by a translation into German.
Chapter 3 Assistance with court costs pursuant to Council Directive 2003/8/EC
Section 1076 Applicable regulations
Unless otherwise provided for hereinbelow, sections 114 to 127a shall apply to assistance with court costs in cross-border disputes within the European Union pursuant to Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (OJEC number L 26 page 41, Official Journal L 32 page 15).
Section 1077 Outgoing applications
(1) That local court (Amtsgericht, AG), in the district of which the petitioner has his place of residence or habitual place of abode, shall be competent for receiving and transmitting applications filed by individuals for assistance with court costs in cross-border disputes. The Land governments may assign the tasks of a transmitting authority to one local court acting for the districts of several local courts, doing so by statutory instrument. They may confer the authorisation upon the Land departments of justice by statutory instrument. Section 21 first sentence of the Act for the Recovery of Maintenance in Relations with Foreign States (Gesetz zur Geltendmachung von Unterhaltsansprüchen im Verkehr mit ausländischen Staaten, AUG) shall remain unaffected hereby. (2) The Federal Ministry of Justice is authorised to introduce, subject to approval by the Bundesrat and doing so by statutory instrument, the standard forms provided for by
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Article 16 (1) of Council Directive 2003/8/EC to be used for applications for assistance with court costs in cross-border disputes and for the transmission of such applications. Insofar as such standard forms for applications for assistance with court costs in cross-border disputes and for the transmission of such applications have already been introduced, the applicant and the transmitting authority must use them. (3) The transmitting authority may refuse to transmit the application, as a whole or in part, doing so by order, where the application is manifestly unfounded or manifestly outside the scope of Council Directive 2003/8/EC. To the extent required in order to prepare a decision pursuant to the first sentence hereof, the transmitting authority may prepare translations ex officio of the foreign-language supporting documents attached to the application. A complaint subject to a time limit is an available remedy against any decision refusing to comply with the application, subject to the provisions made in section 127 (2) second and third sentences. (4) The transmitting authority shall prepare translations ex officio of the entries made in the standard form for applications for assistance with court costs, as well as translations of the supporting documents to be enclosed therewith:
a) Into one of the official languages of the Member State of the competent receiving authority, which corresponds to one of the official languages of the European Union; or
b) Into another language which that Member State accepts. The transmitting authority shall review the petition for completeness and shall work towards those supporting documents being enclosed, of which it is aware that they are required for a decision on the petition to be taken. (5) The transmitting authority shall send the application and the supporting documents to be enclosed, without any legalisation or equivalent formal requirements, to the competent receiving authority of the Member State in which the court is sitting or where enforcement is sought. The transmission shall be made within fourteen (14) days of the translations having been made available that are to be prepared pursuant to subsection (4). (6) Should the competent body of the other Member State have refused to comply with the application for assistance with court costs based on the petitioner’s personal and economic circumstances, or should it have given notice that it will not comply with the application, the transmitting authority shall issue, upon corresponding application being made, a confirmation of indigence if, in corresponding proceedings in Germany, the petitioner would be deemed indigent pursuant to section 115 (1) and (2). Subsection (4), first sentence, shall apply mutatis mutandis to the translation of such confirmation. The transmitting authority shall send the confirmation of indigence to the receiving authority of the other Member State for the purpose of amending the original application for assistance with court costs in cross-border disputes.
Section 1078 Incoming applications
(1) The court hearing the case or the court responsible for execution shall be responsible for applications for assistance with court costs in cross-border disputes. The applications must be completed in German and their supporting documents must be accompanied by a translation into German. No legalisation or equivalent formalities may be demanded. (2) The court shall decide on the application subject to the stipulations set out in sections 114 to 116. It shall send a copy of its decision to the transmitting authority. (3) Applicants shall be granted assistance with court costs in cross-border disputes also if they can prove that they are unable to pay the costs of the proceedings as a whole, only in part, or only in instalments, or as a result of differences in the costs of living between the Member State of domicile or habitual residence on the one hand and of the forum on the other. (4) Should assistance with court costs in cross-border disputes have been granted, it shall be assumed that a new application for assistance with court costs in cross-border disputes
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has been filed for each level of jurisdiction initiated by the applicant or the opponent. The court is to work towards the petitioner demonstrating the prerequisites based on which the approval of assistance with court costs in cross-border disputes is granted for the respective level of jurisdiction.
Chapter 4 European enforcement orders pursuant to Council Regulation (EC) No 805/2004
Title 1 Certificate of domestic enforcement orders as European enforcement orders
Section 1079 Competence
Those courts, public authorities, or notaries who are under obligation to issue an enforceable execution copy of the legal title, shall be competent for issuing the European Enforcement Order certificates pursuant to
1. Article 9 (1), Article 24 (1), Article 25 (1); and
2. Article 6 subsections (2) and (3) of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (Official Journal L 143 page 15.
Section 1080 Decision
(1) Certificates pursuant to Article 9 (1), Article 24 (1), Article 25 (1), and Article 6 (3) of Council Regulation (EC) No 805/2004 are to be issued without the debtor being heard. An execution of the certificate is to be served on the debtor ex officio. (2) Where the application for issuance of a certificate is dismissed, the rules regarding the contestation of the decision to issue a court certificate of enforceability shall apply mutatis mutandis.
Section 1081 Rectification and withdrawal
(1) An application pursuant to Article 10 (1) of Council Regulation (EC) No 805/2004 for the rectification or withdrawal of a court certificate is to be filed with the court that has issued the certificate. That court shall decide on the application. An application for rectification or withdrawal of a notarial certificate, or of a certificate issued by an authority, is to be directed to whichever body has issued the certificate. The notaries or public authorities shall transmit the application without undue delay to the local court (Amtsgericht, AG), for its decision, in the district of which they have their official seat. (2) The debtor may admissibly file an application for withdrawal only within a period of one (1) month. Should the certificate have to be served abroad, the period shall amount to two (2) months. This is a statutory period and shall begin upon the certificate having been served; it shall begin at the earliest, however, upon the enforcement title having been served to which the certificate makes reference. The application for withdrawal is to set out the grounds for which the certificate was obviously granted wrongly. (3) Section 319 subsections (2) and 3 shall apply mutatis mutandis to rectification and withdrawal.
Title 2 Compulsory enforcement under European enforcement orders in Germany
Section 1082 Enforcement title
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Compulsory enforcement shall be pursued in Germany under an enforcement title that was certified as a European enforcement order in another Member State of the European Union pursuant to Council Regulation (EC) No 805/2004, without this requiring a court certificate of enforceability.
Section 1083 Translation
In cases in which the creditor is to submit a translation prepared in accordance with Article 20 (2) lit. c of Council Regulation (EC) No 805/2004, this is to be in German and is to be certified by a person qualified to do so in one of the Member States of the European Union.
Section 1084 Applications pursuant to Articles 21 and 23 of Council Regulation (EC) No 805/2004
(1) The local court (Amtsgericht, AG) as the court responsible for execution shall be competent for applications for refusal, suspension, or limitation of compulsory enforcement pursuant to Articles 21 and 23 of Council Regulation (EC) No 805/2004. The stipulations of Book 8 regarding the local competence of the execution court shall apply mutatis mutandis. The competence pursuant to sentences 1 and 2 hereof shall be exclusive. (2) The decision as to the application pursuant to Article 21 of Council Regulation (EC) No 805/2004 shall be delivered by a court order. Section 769 subsections (1) and (3) as well as section 770 shall apply mutatis mutandis to the termination of compulsory enforcement and the abrogation of enforcement activities already pursued. Enforcement activities may also be abrogated without security being provided. (3) The decision regarding the suspension or limitation of enforcement pursuant to Article 23 of Council Regulation (EC) No 805/2004 shall be taken by interim order. The decision is incontestable.
Section 1085 Termination of compulsory enforcement
Compulsory enforcement is to be stayed or limited in accordance with sections 775 and 776 also in those cases in which the execution of a certificate indicating the lack or limitation of enforceability pursuant to Article 6 (2) of Council Regulation (EC) No 805/2004 is submitted.
Section 1086 Action raising an objection to the claim being enforced
(1) For actions brought pursuant to section 767, that court shall have exclusive local jurisdiction in the district of which the debtor has his place of residence, or, lacking such place of residence in Germany, that court in the district of which compulsory enforcement is to take place or has already taken place. The seats of societies or legal persons shall be equivalent to the place of residence. (2) Section 767 (2) is to be applied mutatis mutandis to court settlements and public records or documents.
Chapter 5 European order for payment procedure pursuant to Council Regulation (EC)
No 1896/2006
Title 1 General regulations
Section 1087 Competence
The local court (Amtsgericht, AG) of Wedding in Berlin shall have exclusive jurisdiction for processing applications for the issuance and review of a European payment order, as well as for the declaration of its enforceability, pursuant to Regulation (EC) No 1896/2006 of the
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European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (Official Journal L 399 page 1).
Section 1088 Automatic processing
(1) The petition for issuance of the European payment order and the statement of opposition may be transmitted in a form that is only machine-readable if the court deems this format to be suited for its automatic processing systems. Section 130a (3) shall apply mutatis mutandis. (2) The Senate of the Land of Berlin determines by statutory instrument, which does not require the consent of the Bundesrat, the point in time at which the local court (Amtsgericht, AG) of Wedding is to introduce the automatic processing of summary proceedings for a payment order; it may confer the authorisation by statutory instrument upon the Senate Administration of Justice of the Land of Berlin (Senatsverwaltung für Justiz des Landes Berlin).
Section 1089 Service
(1) Where the European payment order is to be served in Germany, the rules governing the procedure for service ex officio shall apply mutatis mutandis. Sections 185 to 188 shall not be applied. (2) Where the European payment order is to be served in another Member State of the European Union, the stipulations of Council Regulation (EC) No 1393/2007 shall apply mutatis mutandis, while section 1068 (1) and section 1069 (1) shall apply mutatis mutandis to the service.
Title 2 Statement of opposition against the European payment order
Section 1090 Procedure following a statement of opposition
(1) In the case provided for by Article 17 (1) of Council Regulation (EC) No 1896/2006, the court shall ask the claimant, in its communication providing the information pursuant to Article 17 (3) of Council Regulation (EC) No 1896/2006, to designate the court competent for implementing the legal proceedings determining whether or not a claim is justified. The court shall set a period for the claimant that is reasonable under the circumstances and shall notify him that the court designated for the implementation of the legal proceedings determining whether or not a claim is justified remains responsible for reviewing whether or not it has jurisdiction. The request shall be communicated also to the respondent. (2) Upon receipt of the notice by the claimant pursuant to subsection (1), first sentence, the court that has issued the European payment order shall transfer the proceedings ex officio to the court designated by the claimant. Section 696 (1) third to fifth sentences, section 696 subsections (2), (4) and (5) as well as section 698 shall apply mutatis mutandis. (3) The dispute shall be deemed to be pending upon service of the European payment order, provided that it is transferred promptly upon the request pursuant to subsection (1), first sentence, having been sent, and taking account of the period pursuant to subsection (1), second sentence.
Section 1091 Initiation of dispute proceedings
Section 697 subsections (1) to (3) shall apply mutatis mutandis.
Title 3 Review of the European payment order in exceptional cases
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Section 1092 Procedure
(1) The decision regarding the application for review of the European payment order pursuant to Article 20 subsections (1) or (2) of Council Regulation (EC) No 1896/2006 shall be delivered by court order. The court order is incontestable. (2) The respondent is to substantiate the facts and circumstances on which a repeal of the European payment order should be based. (3) Should the court declare the European payment order to be null and void, the proceedings pursuant to Council Regulation (EC) No 1896/2006 shall be terminated. (4) The period pursuant to Article 16 (2) of Council Regulation (EC) No 1896/2006 shall not be reinstated.
Title 4 Compulsory enforcement under the European payment order
Section 1093 Court certificate of enforceability
Compulsory enforcement is an available remedy in Germany under a European payment order issued and declared enforceable pursuant to Council Regulation (EC) No 1896/2006, without this requiring a court certificate of enforceability.
Section 1094 Translation
If the creditor is to submit a translation pursuant to Article 21 (2) lit. b of Council Regulation (EC) No 1896/2006, this is to be in German and is to be certified by a person qualified to do so in one of the Member States of the European Union.
Section 1095 Protection against enforcement; action raising an objection to the claim being
enforced under the European payment order issued in Germany (1) Insofar as the review of a European payment order issued in Germany is applied for in accordance with Article 20 of Council Regulation (EC) No 1896/2006, section 707 shall apply mutatis mutandis. That court shall be competent to take the decision on the petition filed pursuant to section 707 that is to decide on the application filed pursuant to Article 20 of Council Regulation (EC) No 1896/2006. (2) Statements of opposition concerning the claim as such may admissibly be filed only insofar as the reasons on which they are based arose following service of the European payment order and thus can no longer be asserted by filing an opposition in accordance with Article 16 of Council Regulation (EC) No 1896/2006.
Section 1096 Applications pursuant to Articles 22 and 23 of Council Regulation (EC) No 1896/2006;
action raising an objection to the claim being enforced (1) Section 1084 subsections (1) and (2) shall apply mutatis mutandis to applications that compulsory enforcement be refused pursuant to Article 22 (1) of Council Regulation (EC) No 1896/2006. Section 1084 subsections (1) and (3) shall apply mutatis mutandis to applications for suspension or limitation of compulsory enforcement pursuant to Article 23 of Council Regulation (EC) No 1896/2006. (2) Section 1086 (1) shall apply mutatis mutandis to applications for refusal of compulsory enforcement pursuant to Article 22 (2) of Council Regulation (EC) No 1896/2006. Section 1086 (1) and section 1095 (2) shall apply mutatis mutandis to actions pursuant to section 767.
Chapter 6 European small claims procedure pursuant to Council Regulation (EC) No 861/2007
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Title 1 Procedure serving the judicial decision of a court
Section 1097 Commencement and conduct of the procedure
(1) The standard claim forms provided for by Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (Official Journal L 199 page 1) as well as other applications or declarations may be submitted to the court as a written pleading, a telefax copy or, subject to the provisions made in section 130a, as electronic documents. (2) In the case provided for by of Article 4 (3) of Council Regulation (EC) No 861/2007, the court shall proceed with the claim without applying the stipulations of Council Regulation (EC) No 861/2007.
Section 1098 Refusal to accept a record or document by reason of its language
The period for declaring the refusal to accept a record or document pursuant to Article 6 (3) of Council Regulation (EC) No 861/2007 shall be one (1) week. This is a statutory period and shall begin upon the record or document being served. The recipient is to be instructed as to the consequences of failing to comply with that period.
Section 1099 Counterclaim
(1) A counterclaim that does not correspond to the stipulations of Council Regulation (EC) No 861/2007 is to be dismissed as inadmissible, to the exception of the case provided for by Article 5 (7), first sentence, of Council Regulation (EC) No 861/2007. (2) In the case provided for by Article 5 (7), first sentence, of Council Regulation (EC) No 861/2007, the court shall proceed with the claim and the counterclaim without applying the stipulations of Council Regulation (EC) No 861/2007. The procedure shall be taken over in the situation it was in at the time the counterclaim was brought.
Section 1100 Oral hearing
(1) The court may permit the parties, as well as their attorneys-in-fact and persons providing assistance, to be at a different location during an oral hearing and to take procedural action at that venue. Section 128a subsection (1), second sentence, and subsection (3) shall remain unaffected hereby. (2) The determination of an advance first oral hearing (section 275) is ruled out.
Section 1101 Taking of evidence
(1) The court may take evidence in the manner it deems suitable, unless otherwise provided for by Article 9 subsections (2) and (3) of Council Regulation (EC) No 861/2007. (2) The court may permit a witness, expert, or a party to be at a different location during an oral hearing. Section 128a subsection (2) second and third sentences and subsection (3) shall remain unaffected hereby.
Section 1102 Judgment
Judgments need not be pronounced. The service of a judgment shall take the stead of its pronouncement.
Section 1103 Failure to comply with procedural rules
Should a party fail to make a statement within the period set for it, or should it fail to appear at the hearing for oral argument, the court shall take its decision on the basis of the record as it stands. Section 251a shall not be applied.
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Section 1104 Redress granted in the event the defendant failed to comply with procedural rules
through no fault of his own (1) Given the prerequisites of Article 18 (1) of Council Regulation (EC) No 861/2007, the procedure shall be continued; that status shall be reinstated that the procedure was in prior to the judgment having been entered. Upon corresponding application being made, the court shall determine by court order that the judgment is null and void. (2) The defendant is to demonstrate satisfactorily that the prerequisites of Article 18 (1) of Council Regulation (EC) No 861/2007 are given.
Title 2 Compulsory enforcement
Section 1105 Compulsory enforcement of domestic enforcement titles
(1) Judgments are to be declared provisionally enforceable without provision of security. Sections 712 and 719 (1), first sentence, in conjunction with section 707 are not to be applied. (2) The court before which the main action is being pursued is competent for applications to limitation of enforcement pursuant to Article 15 (2) in conjunction with Article 23 of Council Regulation (EC) No 861/2007. The decision shall be delivered by a preliminary order. It is incontestable. The factual prerequisites of Article 23 of Council Regulation (EC) No 861/2007 are to be demonstrated to the satisfaction of the court.
Section 1106 Certificate of domestic enforcement titles
(1) That court shall be competent to issue the certificate provided for by Article 20 (2) of Council Regulation (EC) No 861/2007 that is responsible for the issuance of an enforceable execution copy of the legal title. (2) The debtor is to be heard prior to the certificate being executed. If the application for issuance of a certificate is dismissed, the rules governing the contestation of the decision to issue a court certificate of enforceability shall apply mutatis mutandis.
Section 1107 Foreign enforcement titles
Compulsory enforcement shall be pursued in Germany based on an enforcement title issued in a Member State of the European Union pursuant to Council Regulation (EC) No 861/2007 without requiring a court certificate of enforceability.
Section 1108 Translation
If the creditor is to submit a translation pursuant to Article 21 (2) lit. b of Council Regulation (EC) No 861/2007, this is to be in German and is to be certified by a person qualified to do so in one of the Member States of the European Union.
Section 1109 Applications pursuant to Articles 22 and 23 of Council Regulation (EC) No 861/2007;
action raising an objection to the claim being enforced (1) Section 1084 subsections (1) and (2) shall apply mutatis mutandis to applications pursuant to Article 22 of Council Regulation (EC) No 861/2007. Section 1084 subsections (1) and (3) shall apply mutatis mutandis to applications pursuant to Article 23 of Council Regulation (EC) No 861/2007. (2) Section 1086 shall apply mutatis mutandis.
Annex (re. section 850c)*) Reference for the original text: published in Federal Law Gazette (Bundesgesetzblatt, BGBl.) I 2005, 3363 - 3378
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Net monthly wage
Amount attachable from a debtor who is under obligation to pay maintenance for ... persons
0 1 2 3 4 5 and more
in euros to
- - - - - -939.99 940.00 to
7.00 - - - - -949.99 950.00 to
14.00 - - - - -959.99 960.00 to
21.00 - - - - -969.99 970.00 to
28.00 - - - - -979.99 980.00 to
35.00 - - - - -989.99 990.00 to
42.00 - - - - -999.99 1,000.00 to
49.00 - - - - -1,009.99 1,010.00 to
56.00 - - - - -1,019.99 1,020.00 to
63.00 - - - - -1,029.99 1,030.00 to
70.00 - - - - -1,039.99 1,040.00 to
77.00 - - - - -1,049.99 1,050.00 to
84.00 - - - - -1,059.99 1,060.00 to
91.00 - - - - -1,069.99 1,070.00 to
98.00 - - - - -1,079.99 1,080.00 to
105.00 - - - - -1,089.99 1,090.00 to
112.00 - - - - -1,099.99 1,100.00 to
119.00 - - - - -1,109.99 1,110.00 to
126.00 - - - - -1,119.99 1,120.00 to
133.00 - - - - -1,129.99 1,130.00 to
140.00 - - - - -1,139.99
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1,140.00 to 147.00 - - - - -1,149.99
1,150.00 to 154.00 - - - - -1,159.99
1,160.00 to 161.00 - - - - -1,169.99
1,170.00 to 168.00 - - - - -1,179.99
1,180.00 to 175.00 - - - - -1,189.99
1,190.00 to 182.00 - - - - -1,199.99
1,200.00 to 189.00 - - - - -1,209.99
1,210.00 to 196.00 - - - - -1,219.99
1,220.00 to 203.00 - - - - -1,229.99
1,230.00 to 210.00 - - - - -1,239.99
1,240.00 to 217.00 - - - - -1,249.99
1,250.00 to 224.00 - - - - -1,259.99
1,260.00 to 231.00 - - - - -1,269.99
1,270.00 to 238.00 - - - - -1,279.99
1,280.00 to 245.00 - - - - -1,289.99
1,290.00 to 252.00 5.00 - - - -1,299.99
1,300.00 to 259.00 10.00 - - - -1,309.99
1,310.00 to 266.00 15.00 - - - -1,319.99
1,320.00 to 273.00 20.00 - - - -1,329.99
1,330.00 to 280.00 25.00 - - - -1,339.99
1,340.00 to 287.00 30.00 - - - -1,349.99
1,350.00 to 294.00 35.00 - - - -1,359.99
1,360.00 to 301.00 40.00 - - - -1,369.99
1,370.00 to 308.00 45.00 - - - -1,379.99
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1,380.00 to 315.00 50.00 - - - -1,389.99
1,390.00 to 322.00 55.00 - - - -1,399.99
1,400.00 to 329.00 60.00 - - - -1,409.99
1,410.00 to 336.00 65.00 - - - -1,419.99
1,420.00 to 343.00 70.00 - - - -1,429.99
1,430.00 to 350.00 75.00 - - - -1,439.99
1,440.00 to 357.00 80.00 - - - -1,449.99
1,450.00 to 364.00 85.00 - - - -1,459.99
1,460.00 to 371.00 90.00 - - - -1,469.99
1,470.00 to 378.00 95.00 - - - -1,479.99
1,480.00 to 385.00 100.00 2.00 - - -1,489.99
1,490.00 to 392.00 105.00 6.00 - - -1,499.99
1,500.00 to 399.00 110.00 10.00 - - -1,509.99
1,510.00 to 406.00 115.00 14.00 - - -1,519.99
1,520.00 to 413.00 120.00 18.00 - - -1,529.99
1,530.00 to 420.00 125.00 22.00 - - -1,539.99
1,540.00 to 427.00 130.00 26.00 - - -1,549.99
1,550.00 to 434.00 135.00 30.00 - - -1,559.99
1,560.00 to 441.00 140.00 34.00 - - -1,569.99
1,570.00 to 448.00 145.00 38.00 - - -1,579.99
1,580.00 to 455.00 150.00 42.00 - - -1,589.99
1,590.00 to 462.00 155.00 46.00 - - -1,599.99
1,600.00 to 469.00 160.00 50.00 - - -1,609.99
1,610.00 to 476.00 165.00 54.00 - - -1,619.99
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1,620.00 to 483.00 170.00 58.00 - - -1,629.99
1,630.00 to 490.00 175.00 62.00 - - -1,639.99
1,640.00 to 497.00 180.00 66.00 - - -1,649.99
1,650.00 to 504.00 185.00 70.00 - - -1,659.99
1,660.00 to 511.00 190.00 74.00 - - -1,669.99
1,670.00 to 518.00 195.00 78.00 - - -1,679.99
1,680.00 to 525.00 200.00 82.00 3.00 - -1,689.99
1,690.00 to 532.00 205.00 86.00 6.00 - -1,699.99
1,700.00 to 539.00 210.00 90.00 9.00 - -1,709.99
1,710.00 to 546.00 215.00 94.00 12.00 - -1,719.99
1,720.00 to 553.00 220.00 98.00 15.00 - -1,729.99
1,730.00 to 560.00 225.00 102.00 18.00 - -1,739.99
1,740.00 to 567.00 230.00 106.00 21.00 - -1,749.99
1,750.00 to 574.00 235.00 110.00 24.00 - -1,759.99
1,760.00 to 581.00 240.00 114.00 27.00 - -1,769.99
1,770.00 to 588.00 245.00 118.00 30.00 - -1,779.99
1,780.00 to 595.00 250.00 122.00 33.00 - -1,789.99
1,790.00 to 602.00 255.00 126.00 36.00 - -1,799.99
1,800.00 to 609.00 260.00 130.00 39.00 - -1,809.99
1,810.00 to 616.00 265.00 134.00 42.00 - -1,819.99
1,820.00 to 623.00 270.00 138.00 45.00 - -1,829.99
1,830.00 to 630.00 275.00 142.00 48.00 - -1,839.99
1,840.00 to 637.00 280.00 146.00 51.00 - -1,849.99
1,850.00 to 644.00 285.00 150.00 54.00 - -1,859.99
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1,860.00 to 651.00 290.00 154.00 57.00 - -1,869.99
1,870.00 to 658.00 295.00 158.00 60.00 1.00 -1,879.99
1,880.00 to 665.00 300.00 162.00 63.00 3.00 -1,889.99
1,890.00 to 672.00 305.00 166.00 66.00 5.00 -1,899.99
1,900.00 to 679.00 310.00 170.00 69.00 7.00 -1,909.99
1,910.00 to 686.00 315.00 174.00 72.00 9.00 -1,919.99
1,920.00 to 693.00 320.00 178.00 75.00 11.00 -1,929.99
1,930.00 to 700.00 325.00 182.00 78.00 13.00 -1,939.99
1,940.00 to 707.00 330.00 186.00 81.00 15.00 -1,949.99
1,950.00 to 714.00 335.00 190.00 84.00 17.00 -1,959.99
1,960.00 to 721.00 340.00 194.00 87.00 19.00 -1,969.99
1,970.00 to 728.00 345.00 198.00 90.00 21.00 -1,979.99
1,980.00 to 735.00 350.00 202.00 93.00 23.00 -1,989.99
1,990.00 to 742.00 355.00 206.00 96.00 25.00 -1,999.99
2,000.00 to 749.00 360.00 210.00 99.00 27.00 -2,009.99
2,010.00 to 756.00 365.00 214.00 102.00 29.00 -2,019.99
2,020.00 to 763.00 370.00 218.00 105.00 31.00 -2,029.99
2,030.00 to 770.00 375.00 222.00 108.00 33.00 -2,039.99
2,040.00 to 777.00 380.00 226.00 111.00 35.00 -2,049.99
2,050.00 to 784.00 385.00 230.00 114.00 37.00 -2,059.99
2,060.00 to 791.00 390.00 234.00 117.00 39.00 -2,069.99
2,070.00 to 798.00 395.00 238.00 120.00 41.00 1.002,079.99
2,080.00 to 805.00 400.00 242.00 123.00 43.00 2.002,089.99
2,090.00 to 812.00 405.00 246.00 126.00 45.00 3.002,099.99
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2,100.00 to 819.00 410.00 250.00 129.00 47.00 4.002,109.99
2,110.00 to 826.00 415.00 254.00 132.00 49.00 5.002,119.99
2,120.00 to 833.00 420.00 258.00 135.00 51.00 6.002,129.99
2,130.00 to 840.00 425.00 262.00 138.00 53.00 7.002,139.99
2,140.00 to 847.00 430.00 266.00 141.00 55.00 8.002,149.99
2,150.00 to 854.00 435.00 270.00 144.00 57.00 9.002,159.99
2,160.00 to 861.00 440.00 274.00 147.00 59.00 10.002,169.99
2,170.00 to 868.00 445.00 278.00 150.00 61.00 11.002,179.99
2,180.00 to 875.00 450.00 282.00 153.00 63.00 12.002,189.99
2,190.00 to 882.00 455.00 286.00 156.00 65.00 13.002,199.99
2,200.00 to 889.00 460.00 290.00 159.00 67.00 14.002,209.99
2,210.00 to 896.00 465.00 294.00 162.00 69.00 15.002,219.99
2,220.00 to 903.00 470.00 298.00 165.00 71.00 16.002,229.99
2,230.00 to 910.00 475.00 302.00 168.00 73.00 17.002,239.99
2,240.00 to 917.00 480.00 306.00 171.00 75.00 18.002,249.99
2,250.00 to 924.00 485.00 310.00 174.00 77.00 19.002,259.99
2,260.00 to 931.00 490.00 314.00 177.00 79.00 20.002,269.99
2,270.00 to 938.00 495.00 318.00 180.00 81.00 21.002,279.99
2,280.00 to 945.00 500.00 322.00 183.00 83.00 22.002,289.99
2,290.00 to 952.00 505.00 326.00 186.00 85.00 23.002,299.99
2,300.00 to 959.00 510.00 330.00 189.00 87.00 24.002,309.99
2,310.00 to 966.00 515.00 334.00 192.00 89.00 25.002,319.99
2,320.00 to 973.00 520.00 338.00 195.00 91.00 26.002,329.99
2,330.00 to 980.00 525.00 342.00 198.00 93.00 27.002,339.99
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2,340.00 to 987.00 530.00 346.00 201.00 95.00 28.002,349.99
2,350.00 to 994.00 535.00 350.00 204.00 97.00 29.002,359.99
2,360.00 to 1,001.00 540.00 354.00 207.00 99.00 30.002,369.99
2,370.00 to 1,008.00 545.00 358.00 210.00 101.00 31.002,379.99
2,380.00 to 1,015.00 550.00 362.00 213.00 103.00 32.002,389.99
2,390.00 to 1,022.00 555.00 366.00 216.00 105.00 33.002,399.99
2,400.00 to 1,029.00 560.00 370.00 219.00 107.00 34.002,409.99
2,410.00 to 1,036.00 565.00 374.00 222.00 109.00 35.002,419.99
2,420.00 to 1,043.00 570.00 378.00 225.00 111.00 36.002,429.99
2,430.00 to 1,050.00 575.00 382.00 228.00 113.00 37.002,439.99
2,440.00 to 1,057.00 580.00 386.00 231.00 115.00 38.002,449.99
2,450.00 to 1,064.00 585.00 390.00 234.00 117.00 39.002,459.99
2,460.00 to 1,071.00 590.00 394.00 237.00 119.00 40.002,469.99
2,470.00 to 1,078.00 595.00 398.00 240.00 121.00 41.002,479.99
2,480.00 to 1,085.00 600.00 402.00 243.00 123.00 42.002,489.99
2,490.00 to 1,092.00 605.00 406.00 246.00 125.00 43.002,499.99
2,500.00 to 1,099.00 610.00 410.00 249.00 127.00 44.002,509.99
2,510.00 to 1,106.00 615.00 414.00 252.00 129.00 45.002,519.99
2,520.00 to 1,113.00 620.00 418.00 255.00 131.00 46.002,529.99
2,530.00 to 1,120.00 625.00 422.00 258.00 133.00 47.002,539.99
2,540.00 to 1,127.00 630.00 426.00 261.00 135.00 48.002,549.99
2,550.00 to 1,134.00 635.00 430.00 264.00 137.00 49.002,559.99
2,560.00 to 1,141.00 640.00 434.00 267.00 139.00 50.002,569.99
2,570.00 to 1,148.00 645.00 438.00 270.00 141.00 51.002,579.99
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2,580.00 to 1,155.00 650.00 442.00 273.00 143.00 52.002,589.99
2,590.00 to 1,162.00 655.00 446.00 276.00 145.00 53.002,599.99
2,600.00 to 1,169.00 660.00 450.00 279.00 147.00 54.002,609.99
2,610.00 to 1,176.00 665.00 454.00 282.00 149.00 55.002,619.99
2,620.00 to 1,183.00 670.00 458.00 285.00 151.00 56.002,629.99
2,630.00 to 1,190.00 675.00 462.00 288.00 153.00 57.002,639.99
2,640.00 to 1,197.00 680.00 466.00 291.00 155.00 58.002,649.99
2,650.00 to 1,204.00 685.00 470.00 294.00 157.00 59.002,659.99
2,660.00 to 1,211.00 690.00 474.00 297.00 159.00 60.002,669.99
2,670.00 to 1,218.00 695.00 478.00 300.00 161.00 61.002,679.99
2,680.00 to 1,225.00 700.00 482.00 303.00 163.00 62.002,689.99
2,690.00 to 1,232.00 705.00 486.00 306.00 165.00 63.002,699.99
2,700.00 to 1,239.00 710.00 490.00 309.00 167.00 64.002,709.99
2,710.00 to 1,246.00 715.00 494.00 312.00 169.00 65.002,719.99
2,720.00 to 1,253.00 720.00 498.00 315.00 171.00 66.002,729.99
2,730.00 to 1,260.00 725.00 502.00 318.00 173.00 67.002,739.99
2,740.00 to 1,267.00 730.00 506.00 321.00 175.00 68.002,749.99
2,750.00 to 1,274.00 735.00 510.00 324.00 177.00 69.002,759.99
2,760.00 to 1,281.00 740.00 514.00 327.00 179.00 70.002,769.99
2,770.00 to 1,288.00 745.00 518.00 330.00 181.00 71.002,779.99
2,780.00 to 1,295.00 750.00 522.00 333.00 183.00 72.002,789.99
2,790.00 to 1,302.00 755.00 526.00 336.00 185.00 73.002,799.99
2,800.00 to 1,309.00 760.00 530.00 339.00 187.00 74.002,809.99
2,810.00 to 1,316.00 765.00 534.00 342.00 189.00 75.002,819.99
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2,820.00 to 1,323.00 770.00 538.00 345.00 191.00 76.002,829.99
2,830.00 to 1,330.00 775.00 542.00 348.00 193.00 77.002,839.99
2,840.00 to 1,337.00 780.00 546.00 351.00 195.00 78.002,849.99
2,850.00 to 1,344.00 785.00 550.00 354.00 197.00 79.002,851.00
Any amount in excess of 2,851.00 euros is fully attachable.
Net weekly wage
Amount attachable from a debtor who is under obligation to pay maintenance for ... persons
0 1 2 3 4 5 and more
in euros to 219.99 - - - - - -
220.00 to 222.49 1.75 - - - - - 222.50 to 224.99 3.50 - - - - - 225.00 to 227.49 5.25 - - - - - 227.50 to 229.99 7.00 - - - - - 230.00 to 232.49 8.75 - - - - - 232.50 to 234.99 10.50 - - - - - 235.00 to 237.49 12.25 - - - - - 237.50 to 239.99 14.00 - - - - - 240.00 to 242.49 15.75 - - - - - 242.50 to 244.99 17.50 - - - - - 245.00 to 247.49 19.25 - - - - - 247.50 to 249.99 21.00 - - - - - 250.00 to 252.49 22.75 - - - - - 252.50 to 254.99 24.50 - - - - - 255.00 to 257.49 26.25 - - - - - 257.50 to 259.99 28.00 - - - - - 260.00 to 262.49 29.75 - - - - - 262.50 to 264.99 31.50 - - - - - 265.00 to 267.49 33.25 - - - - - 267.50 to 269.99 35.00 - - - - - 270.00 to 272.49 36.75 - - - - - 272.50 to 274.99 38.50 - - - - - 275.00 to 277.49 40.25 - - - - - 277.50 to 279.99 42.00 - - - - - 280.00 to 282.49 43.75 - - - - - 282.50 to 284.99 45.50 - - - - - 285.00 to 287.49 47.25 - - - - - 287.50 to 289.99 49.00 - - - - - 290.00 to 292.49 50.75 - - - - - 292.50 to 294.99 52.50 - - - - - 295.00 to 297.49 54.25 - - - - - 297.50 to 299.99 56.00 - - - - -
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300.00 to 302.49 57.75 0.75 - - - - 302.50 to 304.99 59.50 2.00 - - - - 305.00 to 307.49 61.25 3.25 - - - - 307.50 to 309.99 63.00 4.50 - - - - 310.00 to 312.49 64.75 5.75 - - - - 312.50 to 314.99 66.50 7.00 - - - - 315.00 to 317.49 68.25 8.25 - - - - 317.50 to 319.99 70.00 9.50 - - - - 320.00 to 322.49 71.75 10.75 - - - - 322.50 to 324.99 73.50 12.00 - - - - 325.00 to 327.49 75.25 13.25 - - - - 327.50 to 329.99 77.00 14.50 - - - - 330.00 to 332.49 78.75 15.75 - - - - 332.50 to 334.99 80.50 17.00 - - - - 335.00 to 337.49 82.25 18.25 - - - - 337.50 to 339.99 84.00 19.50 - - - - 340.00 to 342.49 85.75 20.75 - - - - 342.50 to 344.99 87.50 22.00 - - - - 345.00 to 347.49 89.25 23.25 0.60 - - - 347.50 to 349.99 91.00 24.50 1.60 - - - 350.00 to 352.49 92.75 25.75 2.60 - - - 352.50 to 354.99 94.50 27.00 3.60 - - - 355.00 to 357.49 96.25 28.25 4.60 - - - 357.50 to 359.99 98.00 29.50 5.60 - - - 360.00 to 362.49 99.75 30.75 6.60 - - - 362.50 to 364.99 101.50 32.00 7.60 - - - 365.00 to 367.49 103.25 33.25 8.60 - - - 367.50 to 369.99 105.00 34.50 9.60 - - - 370.00 to 372.49 106.75 35.75 10.60 - - - 372.50 to 374.99 108.50 37.00 11.60 - - - 375.00 to 377.49 110.25 38.25 12.60 - - - 377.50 to 379.99 112.00 39.50 13.60 - - - 380.00 to 382.49 113.75 40.75 14.60 - - - 382.50 to 384.99 115.50 42.00 15.60 - - - 385.00 to 387.49 117.25 43.25 16.60 - - - 387.50 to 389.99 119.00 44.50 17.60 - - - 390.00 to 392.49 120.75 45.75 18.60 0.45 - - 392.50 to 394.99 122.50 47.00 19.60 1.20 - - 395.00 to 397.49 124.25 48.25 20.60 1.95 - - 397.50 to 399.99 126.00 49.50 21.60 2.70 - - 400.00 to 402.49 127.75 50.75 22.60 3.45 - - 402.50 to 404.99 129.50 52.00 23.60 4.20 - - 405.00 to 407.49 131.25 53.25 24.60 4.95 - - 407.50 to 409.99 133.00 54.50 25.60 5.70 - - 410.00 to 412.49 134.75 55.75 26.60 6.45 - - 412.50 to 414.99 136.50 57.00 27.60 7.20 - - 415.00 to 417.49 138.25 58.25 28.60 7.95 - - 417.50 to 419.99 140.00 59.50 29.60 8.70 - -
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420.00 to 422.49 141.75 60.75 30.60 9.45 - - 422.50 to 424.99 143.50 62.00 31.60 10.20 - - 425.00 to 427.49 145.25 63.25 32.60 10.95 - - 427.50 to 429.99 147.00 64.50 33.60 11.70 - - 430.00 to 432.49 148.75 65.75 34.60 12.45 - - 432.50 to 434.99 150.50 67.00 35.60 13.20 - - 435.00 to 437.49 152.25 68.25 36.60 13.95 0.30 - 437.50 to 439.99 154.00 69.50 37.60 14.70 0.80 - 440.00 to 442.49 155.75 70.75 38.60 15.45 1.30 - 442.50 to 444.99 157.50 72.00 39.60 16.20 1.80 - 445.00 to 447.49 159.25 73.25 40.60 16.95 2.30 - 447.50 to 449.99 161.00 74.50 41.60 17.70 2.80 - 450.00 to 452.49 162.75 75.75 42.60 18.45 3.30 - 452.50 to 454.99 164.50 77.00 43.60 19.20 3.80 - 455.00 to 457.49 166.25 78.25 44.60 19.95 4.30 - 457.50 to 459.99 168.00 79.50 45.60 20.70 4.80 - 460.00 to 462.49 169.75 80.75 46.60 21.45 5.30 - 462.50 to 464.99 171.50 82.00 47.60 22.20 5.80 - 465.00 to 467.49 173.25 83.25 48.60 22.95 6.30 - 467.50 to 469.99 175.00 84.50 49.60 23.70 6.80 - 470.00 to 472.49 176.75 85.75 50.60 24.45 7.30 - 472.50 to 474.99 178.50 87.00 51.60 25.20 7.80 - 475.00 to 477.49 180.25 88.25 52.60 25.95 8.30 - 477.50 to 479.99 182.00 89.50 53.60 26.70 8.80 - 480.00 to 482.49 183.75 90.75 54.60 27.45 9.30 0.15 482.50 to 484.99 185.50 92.00 55.60 28.20 9.80 0.40 485.00 to 487.49 187.25 93.25 56.60 28.95 10.30 0.65 487.50 to 489.99 189.00 94.50 57.60 29.70 10.80 0.90 490.00 to 492.49 190.75 95.75 58.60 30.45 11.30 1.15 492.50 to 494.99 192.50 97.00 59.60 31.20 11.80 1.40 495.00 to 497.49 194.25 98.25 60.60 31.95 12.30 1.65 497.50 to 499.99 196.00 99.50 61.60 32.70 12.80 1.90 500.00 to 502.49 197.75 100.75 62.60 33.45 13.30 2.15 502.50 to 504.99 199.50 102.00 63.60 34.20 13.80 2.40 505.00 to 507.49 201.25 103.25 64.60 34.95 14.30 2.65 507.50 to 509.99 203.00 104.50 65.60 35.70 14.80 2.90 510.00 to 512.49 204.75 105.75 66.60 36.45 15.30 3.15 512.50 to 514.99 206.50 107.00 67.60 37.20 15.80 3.40 515.00 to 517.49 208.25 108.25 68.60 37.95 16.30 3.65 517.50 to 519.99 210.00 109.50 69.60 38.70 16.80 3.90 520.00 to 522.49 211.75 110.75 70.60 39.45 17.30 4.15 522.50 to 524.99 213.50 112.00 71.60 40.20 17.80 4.40 525.00 to 527.49 215.25 113.25 72.60 40.95 18.30 4.65 527.50 to 529.99 217.00 114.50 73.60 41.70 18.80 4.90 530.00 to 532.49 218.75 115.75 74.60 42.45 19.30 5.15 532.50 to 534.99 220.50 117.00 75.60 43.20 19.80 5.40 535.00 to 537.49 222.25 118.25 76.60 43.95 20.30 5.65 537.50 to 539.99 224.00 119.50 77.60 44.70 20.80 5.90
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540.00 to 542.49 225.75 120.75 78.60 45.45 21.30 6.15 542.50 to 544.99 227.50 122.00 79.60 46.20 21.80 6.40 545.00 to 547.49 229.25 123.25 80.60 46.95 22.30 6.65 547.50 to 549.99 231.00 124.50 81.60 47.70 22.80 6.90 550.00 to 552.49 232.75 125.75 82.60 48.45 23.30 7.15 552.50 to 554.99 234.50 127.00 83.60 49.20 23.80 7.40 555.00 to 557.49 236.25 128.25 84.60 49.95 24.30 7.65 557.50 to 559.99 238.00 129.50 85.60 50.70 24.80 7.90 560.00 to 562.49 239.75 130.75 86.60 51.45 25.30 8.15 562.50 to 564.99 241.50 132.00 87.60 52.20 25.80 8.40 565.00 to 567.49 243.25 133.25 88.60 52.95 26.30 8.65 567.50 to 569.99 245.00 134.50 89.60 53.70 26.80 8.90 570.00 to 572.49 246.75 135.75 90.60 54.45 27.30 9.15 572.50 to 574.99 248.50 137.00 91.60 55.20 27.80 9.40 575.00 to 577.49 250.25 138.25 92.60 55.95 28.30 9.65 577.50 to 579.99 252.00 139.50 93.60 56.70 28.80 9.90 580.00 to 582.49 253.75 140.75 94.60 57.45 29.30 10.15 582.50 to 584.99 255.50 142.00 95.60 58.20 29.80 10.40 585.00 to 587.49 257.25 143.25 96.60 58.95 30.30 10.65 587.50 to 589.99 259.00 144.50 97.60 59.70 30.80 10.90 590.00 to 592.49 260.75 145.75 98.60 60.45 31.30 11.15 592.50 to 594.99 262.50 147.00 99.60 61.20 31.80 11.40 595.00 to 597.49 264.25 148.25 100.60 61.95 32.30 11.65 597.50 to 599.99 266.00 149.50 101.60 62.70 32.80 11.90 600.00 to 602.49 267.75 150.75 102.60 63.45 33.30 12.15 602.50 to 604.99 269.50 152.00 103.60 64.20 33.80 12.40 605.00 to 607.49 271.25 153.25 104.60 64.95 34.30 12.65 607.50 to 609.99 273.00 154.50 105.60 65.70 34.80 12.90 610.00 to 612.49 274.75 155.75 106.60 66.45 35.30 13.15 612.50 to 614.99 276.50 157.00 107.60 67.20 35.80 13.40 615.00 to 617.49 278.25 158.25 108.60 67.95 36.30 13.65 617.50 to 619.99 280.00 159.50 109.60 68.70 36.80 13.90 620.00 to 622.49 281.75 160.75 110.60 69.45 37.30 14.15 622.50 to 624.99 283.50 162.00 111.60 70.20 37.80 14.40 625.00 to 627.49 285.25 163.25 112.60 70.95 38.30 14.65 627.50 to 629.99 287.00 164.50 113.60 71.70 38.80 14.90 630.00 to 632.49 288.75 165.75 114.60 72.45 39.30 15.15 632.50 to 634.99 290.50 167.00 115.60 73.20 39.80 15.40 635.00 to 637.49 292.25 168.25 116.60 73.95 40.30 15.65 637.50 to 639.99 294.00 169.50 117.60 74.70 40.80 15.90 640.00 to 642.49 295.75 170.75 118.60 75.45 41.30 16.15 642.50 to 644.99 297.50 172.00 119.60 76.20 41.80 16.40 645.00 to 647.49 299.25 173.25 120.60 76.95 42.30 16.65 647.50 to 649.99 301.00 174.50 121.60 77.70 42.80 16.90 650.00 to 652.49 302.75 175.75 122.60 78.45 43.30 17.15 652.50 to 654.99 304.50 177.00 123.60 79.20 43.80 17.40 655.00 to 657.49 306.25 178.25 124.60 79.95 44.30 17.65 657.50 to 658.00 308.00 179.50 125.60 80.70 44.80 17.90
Service provided by the Federal Ministry of Justice and Consumer Protection in cooperation with juris GmbH – www.juris.de
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Any amount in excess of 658.00 euros is fully attachable.
Net daily wage
Amount attachable from a debtor who is under obligation to pay maintenance for ... persons
0 1 2 3 4 5 and more
in euros to 43.99 - - - - - -
44.00 to 44.49 0.35 - - - - - 44.50 to 44.99 0.70 - - - - - 45.00 to 45.49 1.05 - - - - - 45.50 to 45.99 1.40 - - - - - 46.00 to 46.49 1.75 - - - - - 46.50 to 46.99 2.10 - - - - - 47.00 to 47.49 2.45 - - - - - 47.50 to 47.99 2.80 - - - - - 48.00 to 48.49 3.15 - - - - - 48.50 to 48.99 3.50 - - - - - 49.00 to 49.49 3.85 - - - - - 49.50 to 49.99 4.20 - - - - - 50.00 to 50.49 4.55 - - - - - 50.50 to 50.99 4.90 - - - - - 51.00 to 51.49 5.25 - - - - - 51.50 to 51.99 5.60 - - - - - 52.00 to 52.49 5.95 - - - - - 52.50 to 52.99 6.30 - - - - - 53.00 to 53.49 6.65 - - - - - 53.50 to 53.99 7.00 - - - - - 54.00 to 54.49 7.35 - - - - - 54.50 to 54.99 7.70 - - - - - 55.00 to 55.49 8.05 - - - - - 55.50 to 55.99 8.40 - - - - - 56.00 to 56.49 8.75 - - - - - 56.50 to 56.99 9.10 - - - - - 57.00 to 57.49 9.45 - - - - - 57.50 to 57.99 9.80 - - - - - 58.00 to 58.49 10.15 - - - - - 58.50 to 58.99 10.50 - - - - - 59.00 to 59.49 10.85 - - - - - 59.50 to 59.99 11.20 - - - - - 60.00 to 60.49 11.55 - - - - - 60.50 to 60.99 11.90 - - - - - 61.00 to 61.49 12.25 0.25 - - - - 61.50 to 61.99 12.60 0.50 - - - - 62.00 to 62.49 12.95 0.75 - - - - 62.50 to 62.99 13.30 1.00 - - - - 63.00 to 63.49 13.65 1.25 - - - - 63.50 to 63.99 14.00 1.50 - - - -
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64.00 to 64.49 14.35 1.75 - - - - 64.50 to 64.99 14.70 2.00 - - - - 65.00 to 65.49 15.05 2.25 - - - - 65.50 to 65.99 15.40 2.50 - - - - 66.00 to 66.49 15.75 2.75 - - - - 66.50 to 66.99 16.10 3.00 - - - - 67.00 to 67.49 16.45 3.25 - - - - 67.50 to 67.99 16.80 3.50 - - - - 68.00 to 68.49 17.15 3.75 - - - - 68.50 to 68.99 17.50 4.00 - - - - 69.00 to 69.49 17.85 4.25 - - - - 69.50 to 69.99 18.20 4.50 - - - - 70.00 to 70.49 18.55 4.75 0.20 - - - 70.50 to 70.99 18.90 5.00 0.40 - - - 71.00 to 71.49 19.25 5.25 0.60 - - - 71.50 to 71.99 19.60 5.50 0.80 - - - 72.00 to 72.49 19.95 5.75 1.00 - - - 72.50 to 72.99 20.30 6.00 1.20 - - - 73.00 to 73.49 20.65 6.25 1.40 - - - 73.50 to 73.99 21.00 6.50 1.60 - - - 74.00 to 74.49 21.35 6.75 1.80 - - - 74.50 to 74.99 21.70 7.00 2.00 - - - 75.00 to 75.49 22.05 7.25 2.20 - - - 75.50 to 75.99 22.40 7.50 2.40 - - - 76.00 to 76.49 22.75 7.75 2.60 - - - 76.50 to 76.99 23.10 8.00 2.80 - - - 77.00 to 77.49 23.45 8.25 3.00 - - - 77.50 to 77.99 23.80 8.50 3.20 - - - 78.00 to 78.49 24.15 8.75 3.40 - - - 78.50 to 78.99 24.50 9.00 3.60 - - - 79.00 to 79.49 24.85 9.25 3.80 0.15 - - 79.50 to 79.99 25.20 9.50 4.00 0.30 - - 80.00 to 80.49 25.55 9.75 4.20 0.45 - - 80.50 to 80.99 25.90 10.00 4.40 0.60 - - 81.00 to 81.49 26.25 10.25 4.60 0.75 - - 81.50 to 81.99 26.60 10.50 4.80 0.90 - - 82.00 to 82.49 26.95 10.75 5.00 1.05 - - 82.50 to 82.99 27.30 11.00 5.20 1.20 - - 83.00 to 83.49 27.65 11.25 5.40 1.35 - - 83.50 to 83.99 28.00 11.50 5.60 1.50 - - 84.00 to 84.49 28.35 11.75 5.80 1.65 - - 84.50 to 84.99 28.70 12.00 6.00 1.80 - - 85.00 to 85.49 29.05 12.25 6.20 1.95 - - 85.50 to 85.99 29.40 12.50 6.40 2.10 - - 86.00 to 86.49 29.75 12.75 6.60 2.25 - - 86.50 to 86.99 30.10 13.00 6.80 2.40 - - 87.00 to 87.49 30.45 13.25 7.00 2.55 - - 87.50 to 87.99 30.80 13.50 7.20 2.70 - -
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88.00 to 88.49 31.15 13.75 7.40 2.85 0.10 - 88.50 to 88.99 31.50 14.00 7.60 3.00 0.20 - 89.00 to 89.49 31.85 14.25 7.80 3.15 0.30 - 89.50 to 89.99 32.20 14.50 8.00 3.30 0.40 - 90.00 to 90.49 32.55 14.75 8.20 3.45 0.50 - 90.50 to 90.99 32.90 15.00 8.40 3.60 0.60 - 91.00 to 91.49 33.25 15.25 8.60 3.75 0.70 - 91.50 to 91.99 33.60 15.50 8.80 3.90 0.80 - 92.00 to 92.49 33.95 15.75 9.00 4.05 0.90 - 92.50 to 92.99 34.30 16.00 9.20 4.20 1.00 - 93.00 to 93.49 34.65 16.25 9.40 4.35 1.10 - 93.50 to 93.99 35.00 16.50 9.60 4.50 1.20 - 94.00 to 94.49 35.35 16.75 9.80 4.65 1.30 - 94.50 to 94.99 35.70 17.00 10.00 4.80 1.40 - 95.00 to 95.49 36.05 17.25 10.20 4.95 1.50 - 95.50 to 95.99 36.40 17.50 10.40 5.10 1.60 - 96.00 to 96.49 36.75 17.75 10.60 5.25 1.70 - 96.50 to 96.99 37.10 18.00 10.80 5.40 1.80 - 97.00 to 97.49 37.45 18.25 11.00 5.55 1.90 0.05 97.50 to 97.99 37.80 18.50 11.20 5.70 2.00 0.10 98.00 to 98.49 38.15 18.75 11.40 5.85 2.10 0.15 98.50 to 98.99 38.50 19.00 11.60 6.00 2.20 0.20 99.00 to 99.49 38.85 19.25 11.80 6.15 2.30 0.25 99.50 to 99.99 39.20 19.50 12.00 6.30 2.40 0.30
100.00 to 100.49 39.55 19.75 12.20 6.45 2.50 0.35 100.50 to 100.99 39.90 20.00 12.40 6.60 2.60 0.40 101.00 to 101.49 40.25 20.25 12.60 6.75 2.70 0.45 101.50 to 101.99 40.60 20.50 12.80 6.90 2.80 0.50 102.00 to 102.49 40.95 20.75 13.00 7.05 2.90 0.55 102.50 to 102.99 41.30 21.00 13.20 7.20 3.00 0.60 103.00 to 103.49 41.65 21.25 13.40 7.35 3.10 0.65 103.50 to 103.99 42.00 21.50 13.60 7.50 3.20 0.70 104.00 to 104.49 42.35 21.75 13.80 7.65 3.30 0.75 104.50 to 104.99 42.70 22.00 14.00 7.80 3.40 0.80 105.00 to 105.49 43.05 22.25 14.20 7.95 3.50 0.85 105.50 to 105.99 43.40 22.50 14.40 8.10 3.60 0.90 106.00 to 106.49 43.75 22.75 14.60 8.25 3.70 0.95 106.50 to 106.99 44.10 23.00 14.80 8.40 3.80 1.00 107.00 to 107.49 44.45 23.25 15.00 8.55 3.90 1.05 107.50 to 107.99 44.80 23.50 15.20 8.70 4.00 1.10 108.00 to 108.49 45.15 23.75 15.40 8.85 4.10 1.15 108.50 to 108.99 45.50 24.00 15.60 9.00 4.20 1.20 109.00 to 109.49 45.85 24.25 15.80 9.15 4.30 1.25 109.50 to 109.99 46.20 24.50 16.00 9.30 4.40 1.30 110.00 to 110.49 46.55 24.75 16.20 9.45 4.50 1.35 110.50 to 110.99 46.90 25.00 16.40 9.60 4.60 1.40 111.00 to 111.49 47.25 25.25 16.60 9.75 4.70 1.45 111.50 to 111.99 47.60 25.50 16.80 9.90 4.80 1.50
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112.00 to 112.49 47.95 25.75 17.00 10.05 4.90 1.55 112.50 to 112.99 48.30 26.00 17.20 10.20 5.00 1.60 113.00 to 113.49 48.65 26.25 17.40 10.35 5.10 1.65 113.50 to 113.99 49.00 26.50 17.60 10.50 5.20 1.70 114.00 to 114.49 49.35 26.75 17.80 10.65 5.30 1.75 114.50 to 114.99 49.70 27.00 18.00 10.80 5.40 1.80 115.00 to 115.49 50.05 27.25 18.20 10.95 5.50 1.85 115.50 to 115.99 50.40 27.50 18.40 11.10 5.60 1.90 116.00 to 116.49 50.75 27.75 18.60 11.25 5.70 1.95 116.50 to 116.99 51.10 28.00 18.80 11.40 5.80 2.00 117.00 to 117.49 51.45 28.25 19.00 11.55 5.90 2.05 117.50 to 117.99 51.80 28.50 19.20 11.70 6.00 2.10 118.00 to 118.49 52.15 28.75 19.40 11.85 6.10 2.15 118.50 to 118.99 52.50 29.00 19.60 12.00 6.20 2.20 119.00 to 119.49 52.85 29.25 19.80 12.15 6.30 2.25 119.50 to 119.99 53.20 29.50 20.00 12.30 6.40 2.30 120.00 to 120.49 53.55 29.75 20.20 12.45 6.50 2.35 120.50 to 120.99 53.90 30.00 20.40 12.60 6.60 2.40 121.00 to 121.49 54.25 30.25 20.60 12.75 6.70 2.45 121.50 to 121.99 54.60 30.50 20.80 12.90 6.80 2.50 122.00 to 122.49 54.95 30.75 21.00 13.05 6.90 2.55 122.50 to 122.99 55.30 31.00 21.20 13.20 7.00 2.60 123.00 to 123.49 55.65 31.25 21.40 13.35 7.10 2.65 123.50 to 123.99 56.00 31.50 21.60 13.50 7.20 2.70 124.00 to 124.49 56.35 31.75 21.80 13.65 7.30 2.75 124.50 to 124.99 56.70 32.00 22.00 13.80 7.40 2.80 125.00 to 125.49 57.05 32.25 22.20 13.95 7.50 2.85 125.50 to 125.99 57.40 32.50 22.40 14.10 7.60 2.90 126.00 to 126.49 57.75 32.75 22.60 14.25 7.70 2.95 126.50 to 126.99 58.10 33.00 22.80 14.40 7.80 3.00 127.00 to 127.49 58.45 33.25 23.00 14.55 7.90 3.05 127.50 to 127.99 58.80 33.50 23.20 14.70 8.00 3.10 128.00 to 128.49 59.15 33.75 23.40 14.85 8.10 3.15 128.50 to 128.99 59.50 34.00 23.60 15.00 8.20 3.20 129.00 to 129.49 59.85 34.25 23.80 15.15 8.30 3.25 129.50 to 129.99 60.20 34.50 24.00 15.30 8.40 3.30 130.00 to 130.49 60.55 34.75 24.20 15.45 8.50 3.35 130.50 to 130.99 60.90 35.00 24.40 15.60 8.60 3.40 131.00 to 131.49 61.25 35.25 24.60 15.75 8.70 3.45 131.50 to 131.58 61.60 35.50 24.80 15.90 8.80 3.50
Any amount in excess of 131.58 euros is fully attachable.
*) This annex was amended by an official announcement regarding Section 850c of the Code of Civil Procedure (bulletin regarding the thresholds applying to attachment exemptions 2005) dated 25 February 2005 (published in Federal Law Gazette (Bundesgesetzblatt, BGBl.) I page 493).
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Zivilprozessordnung ZPO
Ausfertigungsdatum: 12.09.1950
Vollzitat:
"Zivilprozessordnung in der Fassung der Bekanntmachung vom 5. Dezember 2005 (BGBl. I S. 3202; 2006 I S. 431; 2007 I S. 1781), die durch Artikel 1 des Gesetzes vom 10. Oktober 2013 (BGBl. I S. 3786) geändert worden ist"
Stand: Neugefasst durch Bek. v. 5.12.2005 I 3202; 2006, 431; 2007, 1781 Zuletzt geändert durch Art. 3 G v. 15.7.2013 I 2379
Hinweis: Änderung durch Art. 1 G v. 31.8.2013 I 3533 (Nr. 55) textlich nachgewiesen, dokumentarisch noch nicht abschließend bearbeitet Änderung durch Art. 8 G v. 20.9.2013 I 3642 (Nr. 58) ist berücksichtigt Änderung durch Art. 1 G v. 10.10.2013 I 3786 (Nr. 62) textlich nachgewiesen, dokumentarisch noch nicht abschließend bearbeitet
Fußnote
(+++ Textnachweis Geltung ab: 1.1.1981 +++) (+++ Maßgaben aufgrund EinigVtr vgl. ZPO Anhang EV;
teilweise nicht mehr anzuwenden +++) (+++ Amtlicher Hinweis des Normgebers auf EG-Recht:
Umsetzung der EGRL 123/2006 (CELEX Nr: 32006L0123) vgl. Art. 8 Nr. 1
G v. 22.8.2010 I 2248 +++)
Neufassung der Zivilprozeßordnung vom 30.1.1877, RGBl. S. 83 durch Art. 9 d. G v. 12.9.1950 I 455 Gem. BVerfGE v. 7.10.2003, 2004 I 124 - 1 BvR 10/99 - war die Zivilprozessordnung in der Fassung, die bis zum 31.12.2001 galt, mit dem Rechtsstaatsprinzip in Verbindung mit Art. 103 Abs. 1 GG insoweit unvereinbar, als sie eine Möglichkeit des Rechtsschutzes gegen Verletzungen des Anspruchs auf rechtliches Gehör durch oberlandesgerichtliche Berufungsurteile außerhalb der streitwertabhängigen Revision nicht vorsah.
Inhaltsübersicht
Buch 1 Allgemeine Vorschriften
Abschnitt 1 Gerichte
Titel 1 Sachliche Zuständigkeit der Gerichte und Wertvorschriften
§ 1 Sachliche Zuständigkeit § 2 Bedeutung des Wertes § 3 Wertfestsetzung nach freiem Ermessen § 4 Wertberechnung; Nebenforderungen
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§ 5 Mehrere Ansprüche § 6 Besitz; Sicherstellung; Pfandrecht § 7 Grunddienstbarkeit § 8 Pacht- oder Mietverhältnis § 9 Wiederkehrende Nutzungen oder Leistungen § 10 (weggefallen) § 11 Bindende Entscheidung über Unzuständigkeit
Titel 2 Gerichtsstand
§ 12 Allgemeiner Gerichtsstand; Begriff § 13 Allgemeiner Gerichtsstand des Wohnsitzes § 14 (weggefallen) § 15 Allgemeiner Gerichtsstand für exterritoriale Deutsche § 16 Allgemeiner Gerichtsstand wohnsitzloser Personen § 17 Allgemeiner Gerichtsstand juristischer Personen § 18 Allgemeiner Gerichtsstand des Fiskus § 19 Mehrere Gerichtsbezirke am Behördensitz § 19a Allgemeiner Gerichtsstand des Insolvenzverwalters § 20 Besonderer Gerichtsstand des Aufenthaltsorts § 21 Besonderer Gerichtsstand der Niederlassung § 22 Besonderer Gerichtsstand der Mitgliedschaft § 23 Besonderer Gerichtsstand des Vermögens und des Gegenstands § 24 Ausschließlicher dinglicher Gerichtsstand § 25 Dinglicher Gerichtsstand des Sachzusammenhanges § 26 Dinglicher Gerichtsstand für persönliche Klagen § 27 Besonderer Gerichtsstand der Erbschaft § 28 Erweiterter Gerichtsstand der Erbschaft § 29 Besonderer Gerichtsstand des Erfüllungsorts § 29a Ausschließlicher Gerichtsstand bei Miet- oder Pachträumen § 29b (weggefallen) § 29c Besonderer Gerichtsstand für Haustürgeschäfte § 30 Gerichtsstand bei Beförderungen § 30a Gerichtsstand bei Bergungsansprüchen § 31 Besonderer Gerichtsstand der Vermögensverwaltung § 32 Besonderer Gerichtsstand der unerlaubten Handlung § 32a Ausschließlicher Gerichtsstand der Umwelteinwirkung § 32b Ausschließlicher Gerichtsstand bei falschen, irreführenden oder
unterlassenen öffentlichen Kapitalmarktinformationen § 33 Besonderer Gerichtsstand der Widerklage § 34 Besonderer Gerichtsstand des Hauptprozesses
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§ 35 Wahl unter mehreren Gerichtsständen § 36 Gerichtliche Bestimmung der Zuständigkeit § 37 Verfahren bei gerichtlicher Bestimmung
Titel 3 Vereinbarung über die Zuständigkeit der Gerichte
§ 38 Zugelassene Gerichtsstandsvereinbarung § 39 Zuständigkeit infolge rügeloser Verhandlung § 40 Unwirksame und unzulässige Gerichtsstandsvereinbarung
Titel 4 Ausschließung und Ablehnung der Gerichtspersonen
§ 41 Ausschluss von der Ausübung des Richteramtes § 42 Ablehnung eines Richters § 43 Verlust des Ablehnungsrechts § 44 Ablehnungsgesuch § 45 Entscheidung über das Ablehnungsgesuch § 46 Entscheidung und Rechtsmittel § 47 Unaufschiebbare Amtshandlungen § 48 Selbstablehnung; Ablehnung von Amts wegen § 49 Urkundsbeamte
Abschnitt 2 Parteien
Titel 1 Parteifähigkeit; Prozessfähigkeit
§ 50 Parteifähigkeit § 51 Prozessfähigkeit; gesetzliche Vertretung; Prozessführung § 52 Umfang der Prozessfähigkeit § 53 Prozessunfähigkeit bei Betreuung oder Pflegschaft § 54 Besondere Ermächtigung zu Prozesshandlungen § 55 Prozessfähigkeit von Ausländern § 56 Prüfung von Amts wegen § 57 Prozesspfleger § 58 Prozesspfleger bei herrenlosem Grundstück oder Schiff
Titel 2 Streitgenossenschaft
§ 59 Streitgenossenschaft bei Rechtsgemeinschaft oder Identität des Grundes
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§ 60 Streitgenossenschaft bei Gleichartigkeit der Ansprüche § 61 Wirkung der Streitgenossenschaft § 62 Notwendige Streitgenossenschaft § 63 Prozessbetrieb; Ladungen
Titel 3 Beteiligung Dritter am Rechtsstreit
§ 64 Hauptintervention § 65 Aussetzung des Hauptprozesses § 66 Nebenintervention § 67 Rechtsstellung des Nebenintervenienten § 68 Wirkung der Nebenintervention § 69 Streitgenössische Nebenintervention § 70 Beitritt des Nebenintervenienten § 71 Zwischenstreit über Nebenintervention § 72 Zulässigkeit der Streitverkündung § 73 Form der Streitverkündung § 74 Wirkung der Streitverkündung § 75 Gläubigerstreit § 76 Urheberbenennung bei Besitz § 77 Urheberbenennung bei Eigentumsbeeinträchtigung
Titel 4 Prozessbevollmächtigte und Beistände
§ 78 Anwaltsprozess § 78a (weggefallen) § 78b Notanwalt § 78c Auswahl des Rechtsanwalts § 79 Parteiprozess § 80 Prozessvollmacht § 81 Umfang der Prozessvollmacht § 82 Geltung für Nebenverfahren § 83 Beschränkung der Prozessvollmacht § 84 Mehrere Prozessbevollmächtigte § 85 Wirkung der Prozessvollmacht § 86 Fortbestand der Prozessvollmacht § 87 Erlöschen der Vollmacht § 88 Mangel der Vollmacht § 89 Vollmachtloser Vertreter § 90 Beistand
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Titel 5 Prozesskosten
§ 91 Grundsatz und Umfang der Kostenpflicht § 91a Kosten bei Erledigung der Hauptsache § 92 Kosten bei teilweisem Obsiegen § 93 Kosten bei sofortigem Anerkenntnis § 93a (weggefallen) § 93b Kosten bei Räumungsklagen § 94 Kosten bei übergegangenem Anspruch § 95 Kosten bei Säumnis oder Verschulden § 96 Kosten erfolgloser Angriffs- oder Verteidigungsmittel § 97 Rechtsmittelkosten § 98 Vergleichskosten § 99 Anfechtung von Kostenentscheidungen § 100 Kosten bei Streitgenossen § 101 Kosten einer Nebenintervention § 102 (weggefallen) § 103 Kostenfestsetzungsgrundlage; Kostenfestsetzungsantrag § 104 Kostenfestsetzungsverfahren § 105 Vereinfachter Kostenfestsetzungsbeschluss § 106 Verteilung nach Quoten § 107 Änderung nach Streitwertfestsetzung
Titel 6 Sicherheitsleistung
§ 108 Art und Höhe der Sicherheit § 109 Rückgabe der Sicherheit § 110 Prozesskostensicherheit § 111 Nachträgliche Prozesskostensicherheit § 112 Höhe der Prozesskostensicherheit § 113 Fristbestimmung für Prozesskostensicherheit
Titel 7 Prozesskostenhilfe und Prozesskostenvorschuss
§ 114 Voraussetzungen § 115 Einsatz von Einkommen und Vermögen § 116 Partei kraft Amtes; juristische Person; parteifähige Vereinigung § 117 Antrag § 118 Bewilligungsverfahren § 119 Bewilligung § 120 Festsetzung von Zahlungen
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§ 120a Änderung der Bewilligung § 121 Beiordnung eines Rechtsanwalts § 122 Wirkung der Prozesskostenhilfe § 123 Kostenerstattung § 124 Aufhebung der Bewilligung § 125 Einziehung der Kosten § 126 Beitreibung der Rechtsanwaltskosten § 127 Entscheidungen
Abschnitt 3 Verfahren
Titel 1 Mündliche Verhandlung
§ 128 Grundsatz der Mündlichkeit; schriftliches Verfahren § 128a Verhandlung im Wege der Bild- und Tonübertragung § 129 Vorbereitende Schriftsätze § 129a Anträge und Erklärungen zu Protokoll § 130 Inhalt der Schriftsätze § 130a Elektronisches Dokument § 130b Gerichtliches elektronisches Dokument § 131 Beifügung von Urkunden § 132 Fristen für Schriftsätze § 133 Abschriften § 134 Einsicht von Urkunden § 135 Mitteilung von Urkunden unter Rechtsanwälten § 136 Prozessleitung durch Vorsitzenden § 137 Gang der mündlichen Verhandlung § 138 Erklärungspflicht über Tatsachen; Wahrheitspflicht § 139 Materielle Prozessleitung § 140 Beanstandung von Prozessleitung oder Fragen § 141 Anordnung des persönlichen Erscheinens § 142 Anordnung der Urkundenvorlegung § 143 Anordnung der Aktenübermittlung § 144 Augenschein; Sachverständige § 145 Prozesstrennung § 146 Beschränkung auf einzelne Angriffs- und Verteidigungsmittel § 147 Prozessverbindung § 148 Aussetzung bei Vorgreiflichkeit § 149 Aussetzung bei Verdacht einer Straftat § 150 Aufhebung von Trennung, Verbindung oder Aussetzung
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§ 151 (weggefallen) § 152 Aussetzung bei Eheaufhebungsantrag § 153 Aussetzung bei Vaterschaftsanfechtungsklage § 154 Aussetzung bei Ehe- oder Kindschaftsstreit § 155 Aufhebung der Aussetzung bei Verzögerung § 156 Wiedereröffnung der Verhandlung § 157 Untervertretung in der Verhandlung § 158 Entfernung infolge Prozessleitungsanordnung § 159 Protokollaufnahme § 160 Inhalt des Protokolls § 160a Vorläufige Protokollaufzeichnung § 161 Entbehrliche Feststellungen § 162 Genehmigung des Protokolls § 163 Unterschreiben des Protokolls § 164 Protokollberichtigung § 165 Beweiskraft des Protokolls
Titel 2 Verfahren bei Zustellungen
Untertitel 1 Zustellungen von Amts wegen
§ 166 Zustellung § 167 Rückwirkung der Zustellung § 168 Aufgaben der Geschäftsstelle § 169 Bescheinigung des Zeitpunktes der Zustellung; Beglaubigung § 170 Zustellung an Vertreter § 171 Zustellung an Bevollmächtigte § 172 Zustellung an Prozessbevollmächtigte § 173 Zustellung durch Aushändigung an der Amtsstelle § 174 Zustellung gegen Empfangsbekenntnis § 175 Zustellung durch Einschreiben mit Rückschein § 176 Zustellungsauftrag § 177 Ort der Zustellung § 178 Ersatzzustellung in der Wohnung, in Geschäftsräumen und
Einrichtungen § 179 Zustellung bei verweigerter Annahme § 180 Ersatzzustellung durch Einlegen in den Briefkasten § 181 Ersatzzustellung durch Niederlegung § 182 Zustellungsurkunde § 183 Zustellung im Ausland
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§ 184 Zustellungsbevollmächtigter; Zustellung durch Aufgabe zur Post § 185 Öffentliche Zustellung § 186 Bewilligung und Ausführung der öffentlichen Zustellung § 187 Veröffentlichung der Benachrichtigung § 188 Zeitpunkt der öffentlichen Zustellung § 189 Heilung von Zustellungsmängeln § 190 Einheitliche Zustellungsformulare
Untertitel 2 Zustellungen auf Betreiben der Parteien
§ 191 Zustellung § 192 Zustellung durch Gerichtsvollzieher § 193 Ausführung der Zustellung § 194 Zustellungsauftrag § 195 Zustellung von Anwalt zu Anwalt §§ 195a bis 213a (weggefallen)
Titel 3 Ladungen, Termine und Fristen
§ 214 Ladung zum Termin § 215 Notwendiger Inhalt der Ladung zur mündlichen Verhandlung § 216 Terminsbestimmung § 217 Ladungsfrist § 218 Entbehrlichkeit der Ladung § 219 Terminsort § 220 Aufruf der Sache; versäumter Termin § 221 Fristbeginn § 222 Fristberechnung § 223 (weggefallen) § 224 Fristkürzung; Fristverlängerung § 225 Verfahren bei Friständerung § 226 Abkürzung von Zwischenfristen § 227 Terminsänderung § 228 (weggefallen) § 229 Beauftragter oder ersuchter Richter
Titel 4 Folgen der Versäumung; Rechtsbehelfsbelehrung; Wiedereinsetzung in den vorigen Stand
§ 230 Allgemeine Versäumungsfolge § 231 Keine Androhung; Nachholung der Prozesshandlung
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§ 232 Rechtsbehelfsbelehrung § 233 Wiedereinsetzung in den vorigen Stand § 234 Wiedereinsetzungsfrist § 235 (weggefallen) § 236 Wiedereinsetzungsantrag § 237 Zuständigkeit für Wiedereinsetzung § 238 Verfahren bei Wiedereinsetzung
Titel 5 Unterbrechung und Aussetzung des Verfahrens
§ 239 Unterbrechung durch Tod der Partei § 240 Unterbrechung durch Insolvenzverfahren § 241 Unterbrechung durch Prozessunfähigkeit § 242 Unterbrechung durch Nacherbfolge § 243 Aufnahme bei Nachlasspflegschaft und Testamentsvollstreckung § 244 Unterbrechung durch Anwaltsverlust § 245 Unterbrechung durch Stillstand der Rechtspflege § 246 Aussetzung bei Vertretung durch Prozessbevollmächtigten § 247 Aussetzung bei abgeschnittenem Verkehr § 248 Verfahren bei Aussetzung § 249 Wirkung von Unterbrechung und Aussetzung § 250 Form von Aufnahme und Anzeige § 251 Ruhen des Verfahrens § 251a Säumnis beider Parteien; Entscheidung nach Lage der Akten § 252 Rechtsmittel bei Aussetzung
Buch 2 Verfahren im ersten Rechtszug
Abschnitt 1 Verfahren vor den Landgerichten
Titel 1 Verfahren bis zum Urteil
§ 253 Klageschrift § 254 Stufenklage § 255 Fristbestimmung im Urteil § 256 Feststellungsklage § 257 Klage auf künftige Zahlung oder Räumung § 258 Klage auf wiederkehrende Leistungen § 259 Klage wegen Besorgnis nicht rechtzeitiger Leistung
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§ 260 Anspruchshäufung § 261 Rechtshängigkeit § 262 Sonstige Wirkungen der Rechtshängigkeit § 263 Klageänderung § 264 Keine Klageänderung § 265 Veräußerung oder Abtretung der Streitsache § 266 Veräußerung eines Grundstücks § 267 Vermutete Einwilligung in die Klageänderung § 268 Unanfechtbarkeit der Entscheidung § 269 Klagerücknahme § 270 Zustellung; formlose Mitteilung § 271 Zustellung der Klageschrift § 272 Bestimmung der Verfahrensweise § 273 Vorbereitung des Termins § 274 Ladung der Parteien; Einlassungsfrist § 275 Früher erster Termin § 276 Schriftliches Vorverfahren § 277 Klageerwiderung; Replik § 278 Gütliche Streitbeilegung, Güteverhandlung, Vergleich § 278a Mediation, außergerichtliche Konfliktbeilegung § 279 Mündliche Verhandlung § 280 Abgesonderte Verhandlung über Zulässigkeit der Klage § 281 Verweisung bei Unzuständigkeit § 282 Rechtzeitigkeit des Vorbringens § 283 Schriftsatzfrist für Erklärungen zum Vorbringen des Gegners § 283a Sicherungsanordnung § 284 Beweisaufnahme § 285 Verhandlung nach Beweisaufnahme § 286 Freie Beweiswürdigung § 287 Schadensermittlung; Höhe der Forderung § 288 Gerichtliches Geständnis § 289 Zusätze beim Geständnis § 290 Widerruf des Geständnisses § 291 Offenkundige Tatsachen § 292 Gesetzliche Vermutungen § 292a (weggefallen) § 293 Fremdes Recht; Gewohnheitsrecht; Statuten § 294 Glaubhaftmachung § 295 Verfahrensrügen § 296 Zurückweisung verspäteten Vorbringens § 296a Vorbringen nach Schluss der mündlichen Verhandlung
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§ 297 Form der Antragstellung § 298 Aktenausdruck § 298a Elektronische Akte § 299 Akteneinsicht; Abschriften § 299a Datenträgerarchiv
Titel 2 Urteil
§ 300 Endurteil § 301 Teilurteil § 302 Vorbehaltsurteil § 303 Zwischenurteil § 304 Zwischenurteil über den Grund § 305 Urteil unter Vorbehalt erbrechtlich beschränkter Haftung § 305a Urteil unter Vorbehalt seerechtlich beschränkter Haftung § 306 Verzicht § 307 Anerkenntnis § 308 Bindung an die Parteianträge § 308a Entscheidung ohne Antrag in Mietsachen § 309 Erkennende Richter § 310 Termin der Urteilsverkündung § 311 Form der Urteilsverkündung § 312 Anwesenheit der Parteien § 313 Form und Inhalt des Urteils § 313a Weglassen von Tatbestand und Entscheidungsgründen § 313b Versäumnis-, Anerkenntnis- und Verzichtsurteil § 314 Beweiskraft des Tatbestandes § 315 Unterschrift der Richter § 316 (weggefallen) § 317 Urteilszustellung und -ausfertigung § 318 Bindung des Gerichts § 319 Berichtigung des Urteils § 320 Berichtigung des Tatbestandes § 321 Ergänzung des Urteils § 321a Abhilfe bei Verletzung des Anspruchs auf rechtliches Gehör § 322 Materielle Rechtskraft § 323 Abänderung von Urteilen § 323a Abänderung von Vergleichen und Urkunden § 323b Verschärfte Haftung § 324 Nachforderungsklage zur Sicherheitsleistung § 325 Subjektive Rechtskraftwirkung
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§ 325a Feststellungswirkung des Musterentscheids § 326 Rechtskraft bei Nacherbfolge § 327 Rechtskraft bei Testamentsvollstreckung § 328 Anerkennung ausländischer Urteile § 329 Beschlüsse und Verfügungen
Titel 3 Versäumnisurteil
§ 330 Versäumnisurteil gegen den Kläger § 331 Versäumnisurteil gegen den Beklagten § 331a Entscheidung nach Aktenlage § 332 Begriff des Verhandlungstermins § 333 Nichtverhandeln der erschienenen Partei § 334 Unvollständiges Verhandeln § 335 Unzulässigkeit einer Versäumnisentscheidung § 336 Rechtsmittel bei Zurückweisung § 337 Vertagung von Amts wegen § 338 Einspruch § 339 Einspruchsfrist § 340 Einspruchsschrift § 340a Zustellung der Einspruchsschrift § 341 Einspruchsprüfung § 341a Einspruchstermin § 342 Wirkung des zulässigen Einspruchs § 343 Entscheidung nach Einspruch § 344 Versäumniskosten § 345 Zweites Versäumnisurteil § 346 Verzicht und Zurücknahme des Einspruchs § 347 Verfahren bei Widerklage und Zwischenstreit
Titel 4 Verfahren vor dem Einzelrichter
§ 348 Originärer Einzelrichter § 348a Obligatorischer Einzelrichter § 349 Vorsitzender der Kammer für Handelssachen § 350 Rechtsmittel §§ 351 bis 354 (weggefallen)
Titel 5 Allgemeine Vorschriften über die Beweisaufnahme
§ 355 Unmittelbarkeit der Beweisaufnahme
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§ 356 Beibringungsfrist § 357 Parteiöffentlichkeit § 357a (weggefallen) § 358 Notwendigkeit eines Beweisbeschlusses § 358a Beweisbeschluss und Beweisaufnahme vor mündlicher Verhandlung § 359 Inhalt des Beweisbeschlusses § 360 Änderung des Beweisbeschlusses § 361 Beweisaufnahme durch beauftragten Richter § 362 Beweisaufnahme durch ersuchten Richter § 363 Beweisaufnahme im Ausland § 364 Parteimitwirkung bei Beweisaufnahme im Ausland § 365 Abgabe durch beauftragten oder ersuchten Richter § 366 Zwischenstreit § 367 Ausbleiben der Partei § 368 Neuer Beweistermin § 369 Ausländische Beweisaufnahme § 370 Fortsetzung der mündlichen Verhandlung
Titel 6 Beweis durch Augenschein
§ 371 Beweis durch Augenschein § 371a Beweiskraft elektronischer Dokumente § 371b Beweiskraft gescannter öffentlicher Urkunden § 372 Beweisaufnahme § 372a Untersuchungen zur Feststellung der Abstammung
Titel 7 Zeugenbeweis
§ 373 Beweisantritt § 374 (weggefallen) § 375 Beweisaufnahme durch beauftragten oder ersuchten Richter § 376 Vernehmung bei Amtsverschwiegenheit § 377 Zeugenladung § 378 Aussageerleichternde Unterlagen § 379 Auslagenvorschuss § 380 Folgen des Ausbleibens des Zeugen § 381 Genügende Entschuldigung des Ausbleibens § 382 Vernehmung an bestimmten Orten § 383 Zeugnisverweigerung aus persönlichen Gründen § 384 Zeugnisverweigerung aus sachlichen Gründen § 385 Ausnahmen vom Zeugnisverweigerungsrecht
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§ 386 Erklärung der Zeugnisverweigerung § 387 Zwischenstreit über Zeugnisverweigerung § 388 Zwischenstreit über schriftliche Zeugnisverweigerung § 389 Zeugnisverweigerung vor beauftragtem oder ersuchtem Richter § 390 Folgen der Zeugnisverweigerung § 391 Zeugenbeeidigung § 392 Nacheid; Eidesnorm § 393 Uneidliche Vernehmung § 394 Einzelvernehmung § 395 Wahrheitsermahnung; Vernehmung zur Person § 396 Vernehmung zur Sache § 397 Fragerecht der Parteien § 398 Wiederholte und nachträgliche Vernehmung § 399 Verzicht auf Zeugen § 400 Befugnisse des mit der Beweisaufnahme betrauten Richters § 401 Zeugenentschädigung
Titel 8 Beweis durch Sachverständige
§ 402 Anwendbarkeit der Vorschriften für Zeugen § 403 Beweisantritt § 404 Sachverständigenauswahl § 404a Leitung der Tätigkeit des Sachverständigen § 405 Auswahl durch den mit der Beweisaufnahme betrauten Richter § 406 Ablehnung eines Sachverständigen § 407 Pflicht zur Erstattung des Gutachtens § 407a Weitere Pflichten des Sachverständigen § 408 Gutachtenverweigerungsrecht § 409 Folgen des Ausbleibens oder der Gutachtenverweigerung § 410 Sachverständigenbeeidigung § 411 Schriftliches Gutachten § 411a Verwertung von Sachverständigengutachten aus anderen Verfahren § 412 Neues Gutachten § 413 Sachverständigenvergütung § 414 Sachverständige Zeugen
Titel 9 Beweis durch Urkunden
§ 415 Beweiskraft öffentlicher Urkunden über Erklärungen § 416 Beweiskraft von Privaturkunden
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§ 416a Beweiskraft des Ausdrucks eines öffentlichen elektronischen Dokuments
§ 417 Beweiskraft öffentlicher Urkunden über amtliche Anordnung, Verfügung oder Entscheidung
§ 418 Beweiskraft öffentlicher Urkunden mit anderem Inhalt § 419 Beweiskraft mangelbehafteter Urkunden § 420 Vorlegung durch Beweisführer; Beweisantritt § 421 Vorlegung durch den Gegner; Beweisantritt § 422 Vorlegungspflicht des Gegners nach bürgerlichem Recht § 423 Vorlegungspflicht des Gegners bei Bezugnahme § 424 Antrag bei Vorlegung durch Gegner § 425 Anordnung der Vorlegung durch Gegner § 426 Vernehmung des Gegners über den Verbleib § 427 Folgen der Nichtvorlegung durch Gegner § 428 Vorlegung durch Dritte; Beweisantritt § 429 Vorlegungspflicht Dritter § 430 Antrag bei Vorlegung durch Dritte § 431 Vorlegungsfrist bei Vorlegung durch Dritte § 432 Vorlegung durch Behörden oder Beamte; Beweisantritt § 433 (weggefallen) § 434 Vorlegung vor beauftragtem oder ersuchtem Richter § 435 Vorlegung öffentlicher Urkunden in Urschrift oder beglaubigter
Abschrift § 436 Verzicht nach Vorlegung § 437 Echtheit inländischer öffentlicher Urkunden § 438 Echtheit ausländischer öffentlicher Urkunden § 439 Erklärung über Echtheit von Privaturkunden § 440 Beweis der Echtheit von Privaturkunden § 441 Schriftvergleichung § 442 Würdigung der Schriftvergleichung § 443 Verwahrung verdächtiger Urkunden § 444 Folgen der Beseitigung einer Urkunde
Titel 10 Beweis durch Parteivernehmung
§ 445 Vernehmung des Gegners; Beweisantritt § 446 Weigerung des Gegners § 447 Vernehmung der beweispflichtigen Partei auf Antrag § 448 Vernehmung von Amts wegen § 449 Vernehmung von Streitgenossen § 450 Beweisbeschluss § 451 Ausführung der Vernehmung
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§ 452 Beeidigung der Partei § 453 Beweiswürdigung bei Parteivernehmung § 454 Ausbleiben der Partei § 455 Prozessunfähige §§ 456 bis 477 (weggefallen)
Titel 11 Abnahme von Eiden und Bekräftigungen
§ 478 Eidesleistung in Person § 479 Eidesleistung vor beauftragtem oder ersuchtem Richter § 480 Eidesbelehrung § 481 Eidesleistung; Eidesformel § 482 (weggefallen) § 483 Eidesleistung sprach- oder hörbehinderter Personen § 484 Eidesgleiche Bekräftigung
Titel 12 Selbständiges Beweisverfahren
§ 485 Zulässigkeit § 486 Zuständiges Gericht § 487 Inhalt des Antrages §§ 488, 489 (weggefallen) § 490 Entscheidung über den Antrag § 491 Ladung des Gegners § 492 Beweisaufnahme § 493 Benutzung im Prozess § 494 Unbekannter Gegner § 494a Frist zur Klageerhebung
Abschnitt 2 Verfahren vor den Amtsgerichten § 495 Anzuwendende Vorschriften § 495a Verfahren nach billigem Ermessen § 496 Einreichung von Schriftsätzen; Erklärungen zu Protokoll § 497 Ladungen § 498 Zustellung des Protokolls über die Klage § 499 Belehrungen §§ 499a - 503 (weggefallen) § 504 Hinweis bei Unzuständigkeit des Amtsgerichts § 505 (weggefallen) § 506 Nachträgliche sachliche Unzuständigkeit
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§§ 507 - 509 (weggefallen) § 510 Erklärung über Urkunden § 510a Inhalt des Protokolls § 510b Urteil auf Vornahme einer Handlung § 510c (weggefallen)
Buch 3 Rechtsmittel
Abschnitt 1 Berufung § 511 Statthaftigkeit der Berufung § 512 Vorentscheidungen im ersten Rechtszug § 513 Berufungsgründe § 514 Versäumnisurteile § 515 Verzicht auf Berufung § 516 Zurücknahme der Berufung § 517 Berufungsfrist § 518 Berufungsfrist bei Urteilsergänzung § 519 Berufungsschrift § 520 Berufungsbegründung § 521 Zustellung der Berufungsschrift und -begründung § 522 Zulässigkeitsprüfung; Zurückweisungsbeschluss § 523 Terminsbestimmung § 524 Anschlussberufung § 525 Allgemeine Verfahrensgrundsätze § 526 Entscheidender Richter § 527 Vorbereitender Einzelrichter § 528 Bindung an die Berufungsanträge § 529 Prüfungsumfang des Berufungsgerichts § 530 Verspätet vorgebrachte Angriffs- und Verteidigungsmittel § 531 Zurückgewiesene und neue Angriffs- und Verteidigungsmittel § 532 Rügen der Unzulässigkeit der Klage § 533 Klageänderung; Aufrechnungserklärung; Widerklage § 534 Verlust des Rügerechts § 535 Gerichtliches Geständnis § 536 Parteivernehmung § 537 Vorläufige Vollstreckbarkeit § 538 Zurückverweisung § 539 Versäumnisverfahren § 540 Inhalt des Berufungsurteils
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§ 541 Prozessakten
Abschnitt 2 Revision § 542 Statthaftigkeit der Revision § 543 Zulassungsrevision § 544 Nichtzulassungsbeschwerde § 545 Revisionsgründe § 546 Begriff der Rechtsverletzung § 547 Absolute Revisionsgründe § 548 Revisionsfrist § 549 Revisionseinlegung § 550 Zustellung der Revisionsschrift § 551 Revisionsbegründung § 552 Zulässigkeitsprüfung § 552a Zurückweisungsbeschluss § 553 Terminsbestimmung; Einlassungsfrist § 554 Anschlussrevision § 555 Allgemeine Verfahrensgrundsätze § 556 Verlust des Rügerechts § 557 Umfang der Revisionsprüfung § 558 Vorläufige Vollstreckbarkeit § 559 Beschränkte Nachprüfung tatsächlicher Feststellungen § 560 Nicht revisible Gesetze § 561 Revisionszurückweisung § 562 Aufhebung des angefochtenen Urteils § 563 Zurückverweisung; eigene Sachentscheidung § 564 Keine Begründung der Entscheidung bei Rügen von
Verfahrensmängeln § 565 Anzuwendende Vorschriften des Berufungsverfahrens § 566 Sprungrevision
Abschnitt 3 Beschwerde
Titel 1 Sofortige Beschwerde
§ 567 Sofortige Beschwerde; Anschlussbeschwerde § 568 Originärer Einzelrichter § 569 Frist und Form § 570 Aufschiebende Wirkung; einstweilige Anordnungen
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§ 571 Begründung, Präklusion, Ausnahmen vom Anwaltszwang § 572 Gang des Beschwerdeverfahrens § 573 Erinnerung
Titel 2 Rechtsbeschwerde
§ 574 Rechtsbeschwerde; Anschlussrechtsbeschwerde § 575 Frist, Form und Begründung der Rechtsbeschwerde § 576 Gründe der Rechtsbeschwerde § 577 Prüfung und Entscheidung der Rechtsbeschwerde
Buch 4 Wiederaufnahme des Verfahrens § 578 Arten der Wiederaufnahme § 579 Nichtigkeitsklage § 580 Restitutionsklage § 581 Besondere Voraussetzungen der Restitutionsklage § 582 Hilfsnatur der Restitutionsklage § 583 Vorentscheidungen § 584 Ausschließliche Zuständigkeit für Nichtigkeits- und Restitutionsklagen § 585 Allgemeine Verfahrensgrundsätze § 586 Klagefrist § 587 Klageschrift § 588 Inhalt der Klageschrift § 589 Zulässigkeitsprüfung § 590 Neue Verhandlung § 591 Rechtsmittel
Buch 5 Urkunden- und Wechselprozess § 592 Zulässigkeit § 593 Klageinhalt; Urkunden § 594 (weggefallen) § 595 Keine Widerklage; Beweismittel § 596 Abstehen vom Urkundenprozess § 597 Klageabweisung § 598 Zurückweisung von Einwendungen § 599 Vorbehaltsurteil § 600 Nachverfahren § 601 (weggefallen) § 602 Wechselprozess
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§ 603 Gerichtsstand § 604 Klageinhalt; Ladungsfrist § 605 Beweisvorschriften § 605a Scheckprozess
Buch 6 (weggefallen)
Buch 7 Mahnverfahren § 688 Zulässigkeit § 689 Zuständigkeit; maschinelle Bearbeitung § 690 Mahnantrag § 691 Zurückweisung des Mahnantrags § 692 Mahnbescheid § 693 Zustellung des Mahnbescheids § 694 Widerspruch gegen den Mahnbescheid § 695 Mitteilung des Widerspruchs; Abschriften § 696 Verfahren nach Widerspruch § 697 Einleitung des Streitverfahrens § 698 Abgabe des Verfahrens am selben Gericht § 699 Vollstreckungsbescheid § 700 Einspruch gegen den Vollstreckungsbescheid § 701 Wegfall der Wirkung des Mahnbescheids § 702 Form von Anträgen und Erklärungen § 703 Kein Nachweis der Vollmacht § 703a Urkunden-, Wechsel- und Scheckmahnverfahren § 703b Sonderregelungen für maschinelle Bearbeitung § 703c Formulare; Einführung der maschinellen Bearbeitung § 703d Antragsgegner ohne allgemeinen inländischen Gerichtsstand
Buch 8 Zwangsvollstreckung
Abschnitt 1 Allgemeine Vorschriften
§ 704 Vollstreckbare Endurteile § 705 Formelle Rechtskraft § 706 Rechtskraft- und Notfristzeugnis § 707 Einstweilige Einstellung der Zwangsvollstreckung § 708 Vorläufige Vollstreckbarkeit ohne Sicherheitsleistung
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§ 709 Vorläufige Vollstreckbarkeit gegen Sicherheitsleistung § 710 Ausnahmen von der Sicherheitsleistung des Gläubigers § 711 Abwendungsbefugnis § 712 Schutzantrag des Schuldners § 713 Unterbleiben von Schuldnerschutzanordnungen § 714 Anträge zur vorläufigen Vollstreckbarkeit § 715 Rückgabe der Sicherheit § 716 Ergänzung des Urteils § 717 Wirkungen eines aufhebenden oder abändernden Urteils § 718 Vorabentscheidung über vorläufige Vollstreckbarkeit § 719 Einstweilige Einstellung bei Rechtsmittel und Einspruch § 720 Hinterlegung bei Abwendung der Vollstreckung § 720a Sicherungsvollstreckung § 721 Räumungsfrist § 722 Vollstreckbarkeit ausländischer Urteile § 723 Vollstreckungsurteil § 724 Vollstreckbare Ausfertigung § 725 Vollstreckungsklausel § 726 Vollstreckbare Ausfertigung bei bedingten Leistungen § 727 Vollstreckbare Ausfertigung für und gegen Rechtsnachfolger § 728 Vollstreckbare Ausfertigung bei Nacherbe oder
Testamentsvollstrecker § 729 Vollstreckbare Ausfertigung gegen Vermögens- und
Firmenübernehmer § 730 Anhörung des Schuldners § 731 Klage auf Erteilung der Vollstreckungsklausel § 732 Erinnerung gegen Erteilung der Vollstreckungsklausel § 733 Weitere vollstreckbare Ausfertigung § 734 Vermerk über Ausfertigungserteilung auf der Urteilsurschrift § 735 Zwangsvollstreckung gegen nicht rechtsfähigen Verein § 736 Zwangsvollstreckung gegen BGB-Gesellschaft § 737 Zwangsvollstreckung bei Vermögens- oder Erbschaftsnießbrauch § 738 Vollstreckbare Ausfertigung gegen Nießbraucher § 739 Gewahrsamsvermutung bei Zwangsvollstreckung gegen Ehegatten
und Lebenspartner § 740 Zwangsvollstreckung in das Gesamtgut § 741 Zwangsvollstreckung in das Gesamtgut bei Erwerbsgeschäft § 742 Vollstreckbare Ausfertigung bei Gütergemeinschaft während des
Rechtsstreits § 743 Beendete Gütergemeinschaft § 744 Vollstreckbare Ausfertigung bei beendeter Gütergemeinschaft § 744a Zwangsvollstreckung bei Eigentums- und Vermögensgemeinschaft
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§ 745 Zwangsvollstreckung bei fortgesetzter Gütergemeinschaft § 746 (weggefallen) § 747 Zwangsvollstreckung in ungeteilten Nachlass § 748 Zwangsvollstreckung bei Testamentsvollstrecker § 749 Vollstreckbare Ausfertigung für und gegen Testamentsvollstrecker § 750 Voraussetzungen der Zwangsvollstreckung § 751 Bedingungen für Vollstreckungsbeginn § 752 Sicherheitsleistung bei Teilvollstreckung § 753 Vollstreckung durch Gerichtsvollzieher § 754 Vollstreckungsauftrag und vollstreckbare Ausfertigung § 755 Ermittlung des Aufenthaltsorts des Schuldners § 756 Zwangsvollstreckung bei Leistung Zug um Zug § 757 Übergabe des Titels und Quittung § 758 Durchsuchung; Gewaltanwendung § 758a Richterliche Durchsuchungsanordnung; Vollstreckung zur Unzeit § 759 Zuziehung von Zeugen § 760 Akteneinsicht; Aktenabschrift § 761 (weggefallen) § 762 Protokoll über Vollstreckungshandlungen § 763 Aufforderungen und Mitteilungen § 764 Vollstreckungsgericht § 765 Vollstreckungsgerichtliche Anordnungen bei Leistung Zug um Zug § 765a Vollstreckungsschutz § 766 Erinnerung gegen Art und Weise der Zwangsvollstreckung § 767 Vollstreckungsabwehrklage § 768 Klage gegen Vollstreckungsklausel § 769 Einstweilige Anordnungen § 770 Einstweilige Anordnungen im Urteil § 771 Drittwiderspruchsklage § 772 Drittwiderspruchsklage bei Veräußerungsverbot § 773 Drittwiderspruchsklage des Nacherben § 774 Drittwiderspruchsklage des Ehegatten § 775 Einstellung oder Beschränkung der Zwangsvollstreckung § 776 Aufhebung von Vollstreckungsmaßregeln § 777 Erinnerung bei genügender Sicherung des Gläubigers § 778 Zwangsvollstreckung vor Erbschaftsannahme § 779 Fortsetzung der Zwangsvollstreckung nach dem Tod des Schuldners § 780 Vorbehalt der beschränkten Erbenhaftung § 781 Beschränkte Erbenhaftung in der Zwangsvollstreckung § 782 Einreden des Erben gegen Nachlassgläubiger § 783 Einreden des Erben gegen persönliche Gläubiger
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§ 784 Zwangsvollstreckung bei Nachlassverwaltung und - insolvenzverfahren
§ 785 Vollstreckungsabwehrklage des Erben § 786 Vollstreckungsabwehrklage bei beschränkter Haftung § 786a See- und binnenschifffahrtsrechtliche Haftungsbeschränkung § 787 Zwangsvollstreckung bei herrenlosem Grundstück oder Schiff § 788 Kosten der Zwangsvollstreckung § 789 Einschreiten von Behörden § 790 (weggefallen) § 791 (weggefallen) § 792 Erteilung von Urkunden an Gläubiger § 793 Sofortige Beschwerde § 794 Weitere Vollstreckungstitel § 794a Zwangsvollstreckung aus Räumungsvergleich § 795 Anwendung der allgemeinen Vorschriften auf die weiteren
Vollstreckungstitel § 795a Zwangsvollstreckung aus Kostenfestsetzungsbeschluss § 795b Vollstreckbarerklärung des gerichtlichen Vergleichs § 796 Zwangsvollstreckung aus Vollstreckungsbescheiden § 796a Voraussetzungen für die Vollstreckbarerklärung des
Anwaltsvergleichs § 796b Vollstreckbarerklärung durch das Prozessgericht § 796c Vollstreckbarerklärung durch einen Notar § 797 Verfahren bei vollstreckbaren Urkunden § 797a Verfahren bei Gütestellenvergleichen § 798 Wartefrist § 798a (weggefallen) § 799 Vollstreckbare Urkunde bei Rechtsnachfolge § 799a Schadensersatzpflicht bei der Vollstreckung aus Urkunden durch
andere Gläubiger § 800 Vollstreckbare Urkunde gegen den jeweiligen
Grundstückseigentümer § 800a Vollstreckbare Urkunde bei Schiffshypothek § 801 Landesrechtliche Vollstreckungstitel § 802 Ausschließlichkeit der Gerichtsstände
Abschnitt 2 Zwangsvollstreckung wegen Geldforderungen
Titel 1 Allgemeine Vorschriften
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§ 802a Grundsätze der Vollstreckung; Regelbefugnisse des Gerichtsvollziehers
§ 802b Gütliche Erledigung; Vollstreckungsaufschub bei Zahlungsvereinbarung
§ 802c Vermögensauskunft des Schuldners § 802d Erneute Vermögensauskunft § 802e Zuständigkeit § 802f Verfahren zur Abnahme der Vermögensauskunft § 802g Erzwingungshaft § 802h Unzulässigkeit der Haftvollstreckung § 802i Vermögensauskunft des verhafteten Schuldners § 802j Dauer der Haft; erneute Haft § 802k Zentrale Verwaltung der Vermögensverzeichnisse § 802l Auskunftsrechte des Gerichtsvollziehers
Titel 2 Zwangsvollstreckung in des bewegliche Vermögen
Untertitel 1 Allgemeine Vorschriften
§ 803 Pfändung § 804 Pfändungspfandrecht § 805 Klage auf vorzugsweise Befriedigung § 806 Keine Gewährleistung bei Pfandveräußerung § 806a Mitteilungen und Befragung durch den Gerichtsvollzieher § 806b (weggefallen) § 807 Abnahme der Vermögensauskunft nach Pfändungsversuch
Untertitel 2 Zwangsvollstreckung in körperliche Sachen
§ 808 Pfändung beim Schuldner § 809 Pfändung beim Gläubiger oder bei Dritten § 810 Pfändung ungetrennter Früchte § 811 Unpfändbare Sachen § 811a Austauschpfändung § 811b Vorläufige Austauschpfändung § 811c Unpfändbarkeit von Haustieren § 811d Vorwegpfändung § 812 Pfändung von Hausrat § 813 Schätzung § 813a (weggefallen) § 813b (weggefallen)
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§ 814 Öffentliche Versteigerung § 815 Gepfändetes Geld § 816 Zeit und Ort der Versteigerung § 817 Zuschlag und Ablieferung § 817a Mindestgebot § 818 Einstellung der Versteigerung § 819 Wirkung des Erlösempfanges § 820 (weggefallen) § 821 Verwertung von Wertpapieren § 822 Umschreibung von Namenspapieren § 823 Außer Kurs gesetzte Inhaberpapiere § 824 Verwertung ungetrennter Früchte § 825 Andere Verwertungsart § 826 Anschlusspfändung § 827 Verfahren bei mehrfacher Pfändung
Untertitel 3 Zwangsvollstreckung in Forderungen und andere Vermögensrechte
§ 828 Zuständigkeit des Vollstreckungsgerichts § 829 Pfändung einer Geldforderung § 829a Vereinfachter Vollstreckungsantrag bei Vollstreckungsbescheiden § 830 Pfändung einer Hypothekenforderung § 830a Pfändung einer Schiffshypothekenforderung § 831 Pfändung indossabler Papiere § 832 Pfändungsumfang bei fortlaufenden Bezügen § 833 Pfändungsumfang bei Arbeits- und Diensteinkommen § 833a Pfändungsumfang bei Kontoguthaben § 834 Keine Anhörung des Schuldners § 835 Überweisung einer Geldforderung § 836 Wirkung der Überweisung § 837 Überweisung einer Hypothekenforderung § 837a Überweisung einer Schiffshypothekenforderung § 838 Einrede des Schuldners bei Faustpfand § 839 Überweisung bei Abwendungsbefugnis § 840 Erklärungspflicht des Drittschuldners § 841 Pflicht zur Streitverkündung § 842 Schadenersatz bei verzögerter Beitreibung § 843 Verzicht des Pfandgläubigers § 844 Andere Verwertungsart § 845 Vorpfändung § 846 Zwangsvollstreckung in Herausgabeansprüche
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§ 847 Herausgabeanspruch auf eine bewegliche Sache § 847a Herausgabeanspruch auf ein Schiff § 848 Herausgabeanspruch auf eine unbewegliche Sache § 849 Keine Überweisung an Zahlungs statt § 850 Pfändungsschutz für Arbeitseinkommen § 850a Unpfändbare Bezüge § 850b Bedingt pfändbare Bezüge § 850c Pfändungsgrenzen für Arbeitseinkommen § 850d Pfändbarkeit bei Unterhaltsansprüchen § 850e Berechnung des pfändbaren Arbeitseinkommens § 850f Änderung des unpfändbaren Betrages § 850g Änderung der Unpfändbarkeitsvoraussetzungen § 850h Verschleiertes Arbeitseinkommen § 850i Pfändungsschutz für sonstige Einkünfte § 850k Pfändungsschutzkonto § 850l Anordnung der Unpfändbarkeit von Kontoguthaben auf dem
Pfändungsschutzkonto § 851 Nicht übertragbare Forderungen § 851a Pfändungsschutz für Landwirte § 851b Pfändungsschutz bei Miet- und Pachtzinsen § 851c Pfändungsschutz bei Altersrenten § 851d Pfändungsschutz bei steuerlich gefördertem Altersvorsorgevermögen § 852 Beschränkt pfändbare Forderungen § 853 Mehrfache Pfändung einer Geldforderung § 854 Mehrfache Pfändung eines Anspruchs auf bewegliche Sachen § 855 Mehrfache Pfändung eines Anspruchs auf eine unbewegliche Sache § 855a Mehrfache Pfändung eines Anspruchs auf ein Schiff § 856 Klage bei mehrfacher Pfändung § 857 Zwangsvollstreckung in andere Vermögensrechte § 858 Zwangsvollstreckung in Schiffspart § 859 Pfändung von Gesamthandanteilen § 860 Pfändung von Gesamtgutanteilen §§ 861, 862 (weggefallen) § 863 Pfändungsbeschränkungen bei Erbschaftsnutzungen
Titel 3 Zwangsvollstreckung in das unbewegliche Vermögen
§ 864 Gegenstand der Immobiliarvollstreckung § 865 Verhältnis zur Mobiliarvollstreckung § 866 Arten der Vollstreckung § 867 Zwangshypothek
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§ 868 Erwerb der Zwangshypothek durch den Eigentümer § 869 Zwangsversteigerung und Zwangsverwaltung § 870 Grundstücksgleiche Rechte § 870a Zwangsvollstreckung in ein Schiff oder Schiffsbauwerk § 871 Landesrechtlicher Vorbehalt bei Eisenbahnen
Titel 4 Verteilungsverfahren
§ 872 Voraussetzungen § 873 Aufforderung des Verteilungsgerichts § 874 Teilungsplan § 875 Terminsbestimmung § 876 Termin zur Erklärung und Ausführung § 877 Säumnisfolgen § 878 Widerspruchsklage § 879 Zuständigkeit für die Widerspruchsklage § 880 Inhalt des Urteils § 881 Versäumnisurteil § 882 Verfahren nach dem Urteil
Titel 5 Zwangsvollstreckung gegen juristische Personen des öffentlichen Rechts
§ 882a Zwangsvollstreckung wegen einer Geldforderung
Titel 6 Schuldnerverzeichnis
§ 882b Inhalt des Schuldnerverzeichnisses § 882c Eintragungsanordnung § 882d Vollziehung der Eintragungsanordnung § 882e Löschung § 882f Einsicht in das Schuldnerverzeichnis § 882g Erteilung von Abdrucken § 882h Zuständigkeit; Ausgestaltung des Schuldnerverzeichnisses Abschnitt 3 Zwangsvollstreckung zur Erwirkung der Herausgabe von Sachen und zur Erwirkung von Handlungen oder Unterlassungen § 883 Herausgabe bestimmter beweglicher Sachen § 884 Leistung einer bestimmten Menge vertretbarer Sachen § 885 Herausgabe von Grundstücken oder Schiffen § 885a Beschränkter Vollstreckungsauftrag
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§ 886 Herausgabe bei Gewahrsam eines Dritten § 887 Vertretbare Handlungen § 888 Nicht vertretbare Handlungen § 888a Keine Handlungsvollstreckung bei Entschädigungspflicht § 889 Eidesstattliche Versicherung nach bürgerlichem Recht § 890 Erzwingung von Unterlassungen und Duldungen § 891 Verfahren; Anhörung des Schuldners; Kostenentscheidung § 892 Widerstand des Schuldners § 893 Klage auf Leistung des Interesses § 894 Fiktion der Abgabe einer Willenserklärung § 895 Willenserklärung zwecks Eintragung bei vorläufig vollstreckbarem
Urteil § 896 Erteilung von Urkunden an Gläubiger § 897 Übereignung; Verschaffung von Grundpfandrechten § 898 Gutgläubiger Erwerb
Abschnitt 4 §§ 899 bis 915h (weggefallen)
Abschnitt 5 Arrest und einstweilige Verfügung § 916 Arrestanspruch § 917 Arrestgrund bei dinglichem Arrest § 918 Arrestgrund bei persönlichem Arrest § 919 Arrestgericht § 920 Arrestgesuch § 921 Entscheidung über das Arrestgesuch § 922 Arresturteil und Arrestbeschluss § 923 Abwendungsbefugnis § 924 Widerspruch § 925 Entscheidung nach Widerspruch § 926 Anordnung der Klageerhebung § 927 Aufhebung wegen veränderter Umstände § 928 Vollziehung des Arrestes § 929 Vollstreckungsklausel; Vollziehungsfrist § 930 Vollziehung in bewegliches Vermögen und Forderungen § 931 Vollziehung in eingetragenes Schiff oder Schiffsbauwerk § 932 Arresthypothek § 933 Vollziehung des persönlichen Arrestes § 934 Aufhebung der Arrestvollziehung § 935 Einstweilige Verfügung bezüglich Streitgegenstand
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§ 936 Anwendung der Arrestvorschriften § 937 Zuständiges Gericht § 938 Inhalt der einstweiligen Verfügung § 939 Aufhebung gegen Sicherheitsleistung § 940 Einstweilige Verfügung zur Regelung eines einstweiligen Zustandes § 940a Räumung von Wohnraum § 941 Ersuchen um Eintragungen im Grundbuch usw. § 942 Zuständigkeit des Amtsgerichts der belegenen Sache § 943 Gericht der Hauptsache § 944 Entscheidung des Vorsitzenden bei Dringlichkeit § 945 Schadensersatzpflicht
Buch 9 (weggefallen)
Buch 10 Schiedsrichterliches Verfahren
Abschnitt 1 Allgemeine Vorschriften § 1025 Anwendungsbereich § 1026 Umfang gerichtlicher Tätigkeit § 1027 Verlust des Rügerechts § 1028 Empfang schriftlicher Mitteilungen bei unbekanntem Aufenthalt
Abschnitt 2 Schiedsvereinbarung § 1029 Begriffsbestimmung § 1030 Schiedsfähigkeit § 1031 Form der Schiedsvereinbarung § 1032 Schiedsvereinbarung und Klage vor Gericht § 1033 Schiedsvereinbarung und einstweilige gerichtliche Maßnahmen
Abschnitt 3 Bildung des Schiedsgerichts § 1034 Zusammensetzung des Schiedsgerichts § 1035 Bestellung der Schiedsrichter § 1036 Ablehnung eines Schiedsrichters § 1037 Ablehnungsverfahren § 1038 Untätigkeit oder Unmöglichkeit der Aufgabenerfüllung § 1039 Bestellung eines Ersatzschiedsrichters
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Abschnitt 4 Zuständigkeit des Schiedsgerichts § 1040 Befugnis des Schiedsgerichts zur Entscheidung über die eigene
Zuständigkeit § 1041 Maßnahmen des einstweiligen Rechtsschutzes
Abschnitt 5 Durchführung des schiedsrichterlichen Verfahrens § 1042 Allgemeine Verfahrensregeln § 1043 Ort des schiedsrichterlichen Verfahrens § 1044 Beginn des schiedsrichterlichen Verfahrens § 1045 Verfahrenssprache § 1046 Klage und Klagebeantwortung § 1047 Mündliche Verhandlung und schriftliches Verfahren § 1048 Säumnis einer Partei § 1049 Vom Schiedsgericht bestellter Sachverständiger § 1050 Gerichtliche Unterstützung bei der Beweisaufnahme und sonstige
richterliche Handlungen
Abschnitt 6 Schiedsspruch und Beendigung des Verfahrens § 1051 Anwendbares Recht § 1052 Entscheidung durch ein Schiedsrichterkollegium § 1053 Vergleich § 1054 Form und Inhalt des Schiedsspruchs § 1055 Wirkungen des Schiedsspruchs § 1056 Beendigung des schiedsrichterlichen Verfahrens § 1057 Entscheidung über die Kosten § 1058 Berichtigung, Auslegung und Ergänzung des Schiedsspruchs
Abschnitt 7 Rechtsbehelf gegen den Schiedsspruch § 1059 Aufhebungsantrag
Abschnitt 8 Voraussetzungen der Anerkennung und Vollstreckung von Schiedssprüchen § 1060 Inländische Schiedssprüche § 1061 Ausländische Schiedssprüche
Abschnitt 9 Gerichtliches Verfahren
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§ 1062 Zuständigkeit § 1063 Allgemeine Vorschriften § 1064 Besonderheiten bei der Vollstreckbarerklärung von Schiedssprüchen § 1065 Rechtsmittel
Abschnitt 10 Außervertragliche Schiedsgerichte § 1066 Entsprechende Anwendung der Vorschriften des Buches 10
Buch 11 Justizielle Zusammenarbeit in der Europäischen Union
Abschnitt 1 Zustellung nach der Verordnung (EG) Nr. 1393/2007 § 1067 Zustellung durch diplomatische oder konsularische Vertretungen § 1068 Zustellung durch die Post § 1069 Zuständigkeiten § 1070 (weggefallen) § 1071 (weggefallen)
Abschnitt 2 Beweisaufnahme nach der Verordnung (EG) Nr. 1206/2001 § 1072 Beweisaufnahme in den Mitgliedstaaten der Europäischen Union § 1073 Teilnahmerechte § 1074 Zuständigkeiten nach der Verordnung (EG) Nr. 1206/2001 § 1075 Sprache eingehender Ersuchen
Abschnitt 3 Prozesskostenhilfe nach der Richtlinie 2003/8/EG § 1076 Anwendbare Vorschriften § 1077 Ausgehende Ersuchen § 1078 Eingehende Ersuchen
Abschnitt 4 Europäische Vollstreckungstitel nach der Verordnung (EG) Nr. 805/2004
Titel 1 Bestätigung inländischer Titel als Europäische Vollstreckungstitel
§ 1079 Zuständigkeit § 1080 Entscheidung § 1081 Berichtigung und Widerruf
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Titel 2 Zwangsvollstreckung aus Europäischen Vollstreckungstiteln im Inland
§ 1082 Vollstreckungstitel § 1083 Übersetzung § 1084 Anträge nach den Artikeln 21 und 23 der Verordnung (EG) Nr.
805/2004 § 1085 Einstellung der Zwangsvollstreckung § 1086 Vollstreckungsabwehrklage
Abschnitt 5 Europäisches Mahnverfahren nach der Verordnung (EG) Nr. 1896/2006
Titel 1 Allgemeine Vorschriften
§ 1087 Zuständigkeit § 1088 Maschinelle Bearbeitung § 1089 Zustellung
Titel 2 Einspruch gegen den Europäischen Zahlungsbefehl
§ 1090 Verfahren nach Einspruch § 1091 Einleitung des Streitverfahrens
Titel 3 Überprüfung des Europäischen Zahlungsbefehls in Ausnahmefällen
§ 1092 Verfahren
Titel 4 Zwangsvollstreckung aus dem Europäischen Zahlungsbefehl
§ 1093 Vollstreckungsklausel § 1094 Übersetzung § 1095 Vollstreckungsschutz und Vollstreckungsabwehrklage gegen den im
Inland erlassenen Europäischen Zahlungsbefehl § 1096 Anträge nach den Artikeln 22 und 23 der Verordnung (EG) Nr.
1896/2006; Vollstreckungsabwehrklage
Abschnitt 6 Europäisches Verfahren für geringfügige Forderungen nach der Verordnung (EG) Nr. 861/2007
Titel 1 Erkenntnisverfahren
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§ 1097 Einleitung und Durchführung des Verfahrens § 1098 Annahmeverweigerung auf Grund der verwendeten Sprache § 1099 Widerklage § 1100 Mündliche Verhandlung § 1101 Beweisaufnahme § 1102 Urteil § 1103 Säumnis § 1104 Abhilfe bei unverschuldeter Säumnis des Beklagten
Titel 2 Zwangsvollstreckung
§ 1105 Zwangsvollstreckung inländischer Titel § 1106 Bestätigung inländischer Titel § 1107 Ausländische Vollstreckungstitel § 1108 Übersetzung § 1109 Anträge nach den Artikeln 22 und 23 der Verordnung (EG) Nr.
861/2007; Vollstreckungsabwehrklage
Buch 1 Allgemeine Vorschriften
Abschnitt 1 Gerichte
Titel 1 Sachliche Zuständigkeit der Gerichte und Wertvorschriften § 1 Sachliche Zuständigkeit
Die sachliche Zuständigkeit der Gerichte wird durch das Gesetz über die Gerichtsverfassung bestimmt.
§ 2 Bedeutung des Wertes
Kommt es nach den Vorschriften dieses Gesetzes oder des Gerichtsverfassungsgesetzes auf den Wert des Streitgegenstandes, des Beschwerdegegenstandes, der Beschwer oder der Verurteilung an, so gelten die nachfolgenden Vorschriften.
§ 3 Wertfestsetzung nach freiem Ermessen
Der Wert wird von dem Gericht nach freiem Ermessen festgesetzt; es kann eine beantragte Beweisaufnahme sowie von Amts wegen die Einnahme des Augenscheins und die Begutachtung durch Sachverständige anordnen.
§ 4 Wertberechnung; Nebenforderungen
(1) Für die Wertberechnung ist der Zeitpunkt der Einreichung der Klage, in der Rechtsmittelinstanz der Zeitpunkt der Einlegung des Rechtsmittels, bei der Verurteilung der Zeitpunkt des Schlusses der mündlichen Verhandlung, auf die das Urteil ergeht, entscheidend; Früchte, Nutzungen, Zinsen und Kosten bleiben unberücksichtigt, wenn sie als Nebenforderungen geltend gemacht werden.
(2) Bei Ansprüchen aus Wechseln im Sinne des Wechselgesetzes sind Zinsen, Kosten und Provision, die außer der Wechselsumme gefordert werden, als Nebenforderungen anzusehen.
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§ 5 Mehrere Ansprüche
Mehrere in einer Klage geltend gemachte Ansprüche werden zusammengerechnet; dies gilt nicht für den Gegenstand der Klage und der Widerklage.
§ 6 Besitz; Sicherstellung; Pfandrecht
Der Wert wird bestimmt: durch den Wert einer Sache, wenn es auf deren Besitz, und durch den Betrag einer Forderung, wenn es auf deren Sicherstellung oder ein Pfandrecht ankommt. Hat der Gegenstand des Pfandrechts einen geringeren Wert, so ist dieser maßgebend.
§ 7 Grunddienstbarkeit
Der Wert einer Grunddienstbarkeit wird durch den Wert, den sie für das herrschende Grundstück hat, und wenn der Betrag, um den sich der Wert des dienenden Grundstücks durch die Dienstbarkeit mindert, größer ist, durch diesen Betrag bestimmt.
§ 8 Pacht- oder Mietverhältnis
Ist das Bestehen oder die Dauer eines Pacht- oder Mietverhältnisses streitig, so ist der Betrag der auf die gesamte streitige Zeit entfallenden Pacht oder Miete und, wenn der 25fache Betrag des einjährigen Entgelts geringer ist, dieser Betrag für die Wertberechnung entscheidend.
§ 9 Wiederkehrende Nutzungen oder Leistungen
Der Wert des Rechts auf wiederkehrende Nutzungen oder Leistungen wird nach dem dreieinhalbfachen Wert des einjährigen Bezuges berechnet. Bei bestimmter Dauer des Bezugsrechts ist der Gesamtbetrag der künftigen Bezüge maßgebend, wenn er der geringere ist.
§ 10
(weggefallen)
§ 11 Bindende Entscheidung über Unzuständigkeit
Ist die Unzuständigkeit eines Gerichts auf Grund der Vorschriften über die sachliche Zuständigkeit der Gerichte rechtskräftig ausgesprochen, so ist diese Entscheidung für das Gericht bindend, bei dem die Sache später anhängig wird.
Titel 2 Gerichtsstand § 12 Allgemeiner Gerichtsstand; Begriff
Das Gericht, bei dem eine Person ihren allgemeinen Gerichtsstand hat, ist für alle gegen sie zu erhebenden Klagen zuständig, sofern nicht für eine Klage ein ausschließlicher Gerichtsstand begründet ist.
§ 13 Allgemeiner Gerichtsstand des Wohnsitzes
Der allgemeine Gerichtsstand einer Person wird durch den Wohnsitz bestimmt.
§ 14
(weggefallen)
§ 15 Allgemeiner Gerichtsstand für exterritoriale Deutsche
(1) Deutsche, die das Recht der Exterritorialität genießen, sowie die im Ausland beschäftigten deutschen Angehörigen des öffentlichen Dienstes behalten den Gerichtsstand ihres letzten inländischen Wohnsitzes.
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Wenn sie einen solchen Wohnsitz nicht hatten, haben sie ihren allgemeinen Gerichtsstand beim Amtsgericht Schöneberg in Berlin.
(2) Auf Honorarkonsuln ist diese Vorschrift nicht anzuwenden.
§ 16 Allgemeiner Gerichtsstand wohnsitzloser Personen
Der allgemeine Gerichtsstand einer Person, die keinen Wohnsitz hat, wird durch den Aufenthaltsort im Inland und, wenn ein solcher nicht bekannt ist, durch den letzten Wohnsitz bestimmt.
§ 17 Allgemeiner Gerichtsstand juristischer Personen
(1) Der allgemeine Gerichtsstand der Gemeinden, der Korporationen sowie derjenigen Gesellschaften, Genossenschaften oder anderen Vereine und derjenigen Stiftungen, Anstalten und Vermögensmassen, die als solche verklagt werden können, wird durch ihren Sitz bestimmt. Als Sitz gilt, wenn sich nichts anderes ergibt, der Ort, wo die Verwaltung geführt wird.
(2) Gewerkschaften haben den allgemeinen Gerichtsstand bei dem Gericht, in dessen Bezirk das Bergwerk liegt, Behörden, wenn sie als solche verklagt werden können, bei dem Gericht ihres Amtssitzes.
(3) Neben dem durch die Vorschriften dieses Paragraphen bestimmten Gerichtsstand ist ein durch Statut oder in anderer Weise besonders geregelter Gerichtsstand zulässig.
§ 18 Allgemeiner Gerichtsstand des Fiskus
Der allgemeine Gerichtsstand des Fiskus wird durch den Sitz der Behörde bestimmt, die berufen ist, den Fiskus in dem Rechtsstreit zu vertreten.
§ 19 Mehrere Gerichtsbezirke am Behördensitz
Ist der Ort, an dem eine Behörde ihren Sitz hat, in mehrere Gerichtsbezirke geteilt, so wird der Bezirk, der im Sinne der §§ 17, 18 als Sitz der Behörde gilt, für die Bundesbehörden von dem Bundesminister der Justiz, im Übrigen von der Landesjustizverwaltung durch allgemeine Anordnung bestimmt.
§ 19a Allgemeiner Gerichtsstand des Insolvenzverwalters
Der allgemeine Gerichtsstand eines Insolvenzverwalters für Klagen, die sich auf die Insolvenzmasse beziehen, wird durch den Sitz des Insolvenzgerichts bestimmt.
§ 20 Besonderer Gerichtsstand des Aufenthaltsorts
Wenn Personen an einem Ort unter Verhältnissen, die ihrer Natur nach auf einen Aufenthalt von längerer Dauer hinweisen, insbesondere als Hausgehilfen, Arbeiter, Gewerbegehilfen, Studierende, Schüler oder Lehrlinge sich aufhalten, so ist das Gericht des Aufenthaltsortes für alle Klagen zuständig, die gegen diese Personen wegen vermögensrechtlicher Ansprüche erhoben werden.
§ 21 Besonderer Gerichtsstand der Niederlassung
(1) Hat jemand zum Betrieb einer Fabrik, einer Handlung oder eines anderen Gewerbes eine Niederlassung, von der aus unmittelbar Geschäfte geschlossen werden, so können gegen ihn alle Klagen, die auf den Geschäftsbetrieb der Niederlassung Bezug haben, bei dem Gericht des Ortes erhoben werden, wo die Niederlassung sich befindet.
(2) Der Gerichtsstand der Niederlassung ist auch für Klagen gegen Personen begründet, die ein mit Wohn- und Wirtschaftsgebäuden versehenes Gut als Eigentümer, Nutznießer oder Pächter bewirtschaften, soweit diese Klagen die auf die Bewirtschaftung des Gutes sich beziehenden Rechtsverhältnisse betreffen.
§ 22 Besonderer Gerichtsstand der Mitgliedschaft
Das Gericht, bei dem Gemeinden, Korporationen, Gesellschaften, Genossenschaften oder andere Vereine den allgemeinen Gerichtsstand haben, ist für die Klagen zuständig, die von ihnen oder von dem Insolvenzverwalter gegen die Mitglieder als solche oder von den Mitgliedern in dieser Eigenschaft gegeneinander erhoben werden.
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§ 23 Besonderer Gerichtsstand des Vermögens und des Gegenstands
Für Klagen wegen vermögensrechtlicher Ansprüche gegen eine Person, die im Inland keinen Wohnsitz hat, ist das Gericht zuständig, in dessen Bezirk sich Vermögen derselben oder der mit der Klage in Anspruch genommene Gegenstand befindet. Bei Forderungen gilt als der Ort, wo das Vermögen sich befindet, der Wohnsitz des Schuldners und, wenn für die Forderungen eine Sache zur Sicherheit haftet, auch der Ort, wo die Sache sich befindet.
§ 23a (weggefallen)
-
§ 24 Ausschließlicher dinglicher Gerichtsstand
(1) Für Klagen, durch die das Eigentum, eine dingliche Belastung oder die Freiheit von einer solchen geltend gemacht wird, für Grenzscheidungs-, Teilungs- und Besitzklagen ist, sofern es sich um unbewegliche Sachen handelt, das Gericht ausschließlich zuständig, in dessen Bezirk die Sache belegen ist.
(2) Bei den eine Grunddienstbarkeit, eine Reallast oder ein Vorkaufsrecht betreffenden Klagen ist die Lage des dienenden oder belasteten Grundstücks entscheidend.
§ 25 Dinglicher Gerichtsstand des Sachzusammenhanges
In dem dinglichen Gerichtsstand kann mit der Klage aus einer Hypothek, Grundschuld oder Rentenschuld die Schuldklage, mit der Klage auf Umschreibung oder Löschung einer Hypothek, Grundschuld oder Rentenschuld die Klage auf Befreiung von der persönlichen Verbindlichkeit, mit der Klage auf Anerkennung einer Reallast die Klage auf rückständige Leistungen erhoben werden, wenn die verbundenen Klagen gegen denselben Beklagten gerichtet sind.
§ 26 Dinglicher Gerichtsstand für persönliche Klagen
In dem dinglichen Gerichtsstand können persönliche Klagen, die gegen den Eigentümer oder Besitzer einer unbeweglichen Sache als solche gerichtet werden, sowie Klagen wegen Beschädigung eines Grundstücks oder hinsichtlich der Entschädigung wegen Enteignung eines Grundstücks erhoben werden.
§ 27 Besonderer Gerichtsstand der Erbschaft
(1) Klagen, welche die Feststellung des Erbrechts, Ansprüche des Erben gegen einen Erbschaftsbesitzer, Ansprüche aus Vermächtnissen oder sonstigen Verfügungen von Todes wegen, Pflichtteilsansprüche oder die Teilung der Erbschaft zum Gegenstand haben, können vor dem Gericht erhoben werden, bei dem der Erblasser zur Zeit seines Todes den allgemeinen Gerichtsstand gehabt hat.
(2) Ist der Erblasser ein Deutscher und hatte er zur Zeit seines Todes im Inland keinen allgemeinen Gerichtsstand, so können die im Absatz 1 bezeichneten Klagen vor dem Gericht erhoben werden, in dessen Bezirk der Erblasser seinen letzten inländischen Wohnsitz hatte; wenn er einen solchen Wohnsitz nicht hatte, so gilt die Vorschrift des § 15 Abs. 1 Satz 2 entsprechend.
§ 28 Erweiterter Gerichtsstand der Erbschaft
In dem Gerichtsstand der Erbschaft können auch Klagen wegen anderer Nachlassverbindlichkeiten erhoben werden, solange sich der Nachlass noch ganz oder teilweise im Bezirk des Gerichts befindet oder die vorhandenen mehreren Erben noch als Gesamtschuldner haften.
§ 29 Besonderer Gerichtsstand des Erfüllungsorts
(1) Für Streitigkeiten aus einem Vertragsverhältnis und über dessen Bestehen ist das Gericht des Ortes zuständig, an dem die streitige Verpflichtung zu erfüllen ist.
(2) Eine Vereinbarung über den Erfüllungsort begründet die Zuständigkeit nur, wenn die Vertragsparteien Kaufleute, juristische Personen des öffentlichen Rechts oder öffentlich-rechtliche Sondervermögen sind.
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§ 29a Ausschließlicher Gerichtsstand bei Miet- oder Pachträumen
(1) Für Streitigkeiten über Ansprüche aus Miet- oder Pachtverhältnissen über Räume oder über das Bestehen solcher Verhältnisse ist das Gericht ausschließlich zuständig, in dessen Bezirk sich die Räume befinden.
(2) Absatz 1 ist nicht anzuwenden, wenn es sich um Wohnraum der in § 549 Abs. 2 Nr. 1 bis 3 des Bürgerlichen Gesetzbuchs genannten Art handelt.
§ 29b (weggefallen)
-
§ 29c Besonderer Gerichtsstand für Haustürgeschäfte
(1) Für Klagen aus Haustürgeschäften (§ 312 des Bürgerlichen Gesetzbuchs) ist das Gericht zuständig, in dessen Bezirk der Verbraucher zur Zeit der Klageerhebung seinen Wohnsitz, in Ermangelung eines solchen seinen gewöhnlichen Aufenthalt hat. Für Klagen gegen den Verbraucher ist dieses Gericht ausschließlich zuständig.
(2) § 33 Abs. 2 findet auf Widerklagen der anderen Vertragspartei keine Anwendung.
(3) Eine von Absatz 1 abweichende Vereinbarung ist zulässig für den Fall, dass der Verbraucher nach Vertragsschluss seinen Wohnsitz oder gewöhnlichen Aufenthalt aus dem Geltungsbereich dieses Gesetzes verlegt oder sein Wohnsitz oder gewöhnlicher Aufenthalt im Zeitpunkt der Klageerhebung nicht bekannt ist.
§ 30 Gerichtsstand bei Beförderungen
(1) Für Rechtsstreitigkeiten aus einer Güterbeförderung ist auch das Gericht zuständig, in dessen Bezirk der Ort der Übernahme des Gutes oder der für die Ablieferung des Gutes vorgesehene Ort liegt. Eine Klage gegen den ausführenden Frachtführer oder ausführenden Verfrachter kann auch in dem Gerichtsstand des Frachtführers oder Verfrachters erhoben werden. Eine Klage gegen den Frachtführer oder Verfrachter kann auch in dem Gerichtsstand des ausführenden Frachtführers oder ausführenden Verfrachters erhoben werden.
(2) Für Rechtsstreitigkeiten wegen einer Beförderung von Fahrgästen und ihrem Gepäck auf Schiffen ist auch das Gericht zuständig, in dessen Bezirk sich der im Beförderungsvertrag bestimmte Abgangs- oder Bestimmungsort befindet. Eine von Satz 1 abweichende Vereinbarung ist unwirksam, wenn sie vor Eintritt des Ereignisses getroffen wird, das den Tod oder die Körperverletzung des Fahrgasts oder den Verlust, die Beschädigung oder die verspätete Aushändigung des Gepäcks verursacht hat.
§ 30a Gerichtsstand bei Bergungsansprüchen
Für Klagen wegen Ansprüchen aus Bergung von Schiffen oder sonstigen Vermögensgegenständen in einem Gewässer gegen eine Person, die im Inland keinen Gerichtsstand hat, ist das Gericht zuständig, bei dem der Kläger im Inland seinen allgemeinen Gerichtsstand hat.
§ 31 Besonderer Gerichtsstand der Vermögensverwaltung
Für Klagen, die aus einer Vermögensverwaltung von dem Geschäftsherrn gegen den Verwalter oder von dem Verwalter gegen den Geschäftsherrn erhoben werden, ist das Gericht des Ortes zuständig, wo die Verwaltung geführt ist.
§ 32 Besonderer Gerichtsstand der unerlaubten Handlung
Für Klagen aus unerlaubten Handlungen ist das Gericht zuständig, in dessen Bezirk die Handlung begangen ist.
§ 32a Ausschließlicher Gerichtsstand der Umwelteinwirkung
Für Klagen gegen den Inhaber einer im Anhang 1 des Umwelthaftungsgesetzes genannten Anlage, mit denen der Ersatz eines durch eine Umwelteinwirkung verursachten Schadens geltend gemacht wird, ist das Gericht ausschließlich zuständig, in dessen Bezirk die Umwelteinwirkung von der Anlage ausgegangen ist. Dies gilt nicht, wenn die Anlage im Ausland belegen ist.
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§ 32b Ausschließlicher Gerichtsstand bei falschen, irreführenden oder unterlassenen öffentlichen Kapitalmarktinformationen
(1) Für Klagen, in denen 1. ein Schadensersatzanspruch wegen falscher, irreführender oder unterlassener öffentlicher
Kapitalmarktinformation, 2. ein Schadensersatzanspruch wegen Verwendung einer falschen oder irreführenden öffentlichen
Kapitalmarktinformation oder wegen Unterlassung der gebotenen Aufklärung darüber, dass eine öffentliche Kapitalmarktinformation falsch oder irreführend ist, oder
3. ein Erfüllungsanspruch aus Vertrag, der auf einem Angebot nach dem Wertpapiererwerbs- und Übernahmegesetz beruht,
geltend gemacht wird, ist das Gericht ausschließlich am Sitz des betroffenen Emittenten, des betroffenen Anbieters von sonstigen Vermögensanlagen oder der Zielgesellschaft zuständig, wenn sich dieser Sitz im Inland befindet und die Klage zumindest auch gegen den Emittenten, den Anbieter oder die Zielgesellschaft gerichtet wird.
(2) Die Landesregierungen werden ermächtigt, durch Rechtsverordnung die in Absatz 1 genannten Klagen einem Landgericht für die Bezirke mehrerer Landgerichte zuzuweisen, sofern dies der sachlichen Förderung oder schnelleren Erledigung der Verfahren dienlich ist. Die Landesregierungen können diese Ermächtigung auf die Landesjustizverwaltungen übertragen.
§ 33 Besonderer Gerichtsstand der Widerklage
(1) Bei dem Gericht der Klage kann eine Widerklage erhoben werden, wenn der Gegenanspruch mit dem in der Klage geltend gemachten Anspruch oder mit den gegen ihn vorgebrachten Verteidigungsmitteln in Zusammenhang steht.
(2) Dies gilt nicht, wenn für eine Klage wegen des Gegenanspruchs die Vereinbarung der Zuständigkeit des Gerichts nach § 40 Abs. 2 unzulässig ist.
§ 34 Besonderer Gerichtsstand des Hauptprozesses
Für Klagen der Prozessbevollmächtigten, der Beistände, der Zustellungsbevollmächtigten und der Gerichtsvollzieher wegen Gebühren und Auslagen ist das Gericht des Hauptprozesses zuständig.
§ 35 Wahl unter mehreren Gerichtsständen
Unter mehreren zuständigen Gerichten hat der Kläger die Wahl.
§ 35a (weggefallen)
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§ 36 Gerichtliche Bestimmung der Zuständigkeit
(1) Das zuständige Gericht wird durch das im Rechtszug zunächst höhere Gericht bestimmt: 1. wenn das an sich zuständige Gericht in einem einzelnen Fall an der Ausübung des Richteramtes rechtlich
oder tatsächlich verhindert ist; 2. wenn es mit Rücksicht auf die Grenzen verschiedener Gerichtsbezirke ungewiss ist, welches Gericht für den
Rechtsstreit zuständig sei; 3. wenn mehrere Personen, die bei verschiedenen Gerichten ihren allgemeinen Gerichtsstand haben,
als Streitgenossen im allgemeinen Gerichtsstand verklagt werden sollen und für den Rechtsstreit ein gemeinschaftlicher besonderer Gerichtsstand nicht begründet ist;
4. wenn die Klage in dem dinglichen Gerichtsstand erhoben werden soll und die Sache in den Bezirken verschiedener Gerichte belegen ist;
5. wenn in einem Rechtsstreit verschiedene Gerichte sich rechtskräftig für zuständig erklärt haben;
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6. wenn verschiedene Gerichte, von denen eines für den Rechtsstreit zuständig ist, sich rechtskräftig für unzuständig erklärt haben.
(2) Ist das zunächst höhere gemeinschaftliche Gericht der Bundesgerichtshof, so wird das zuständige Gericht durch das Oberlandesgericht bestimmt, zu dessen Bezirk das zuerst mit der Sache befasste Gericht gehört.
(3) Will das Oberlandesgericht bei der Bestimmung des zuständigen Gerichts in einer Rechtsfrage von der Entscheidung eines anderen Oberlandesgerichts oder des Bundesgerichtshofs abweichen, so hat es die Sache unter Begründung seiner Rechtsauffassung dem Bundesgerichtshof vorzulegen. In diesem Fall entscheidet der Bundesgerichtshof.
§ 37 Verfahren bei gerichtlicher Bestimmung
(1) Die Entscheidung über das Gesuch um Bestimmung des zuständigen Gerichts ergeht durch Beschluss.
(2) Der Beschluss, der das zuständige Gericht bestimmt, ist nicht anfechtbar.
Titel 3 Vereinbarung über die Zuständigkeit der Gerichte § 38 Zugelassene Gerichtsstandsvereinbarung
(1) Ein an sich unzuständiges Gericht des ersten Rechtszuges wird durch ausdrückliche oder stillschweigende Vereinbarung der Parteien zuständig, wenn die Vertragsparteien Kaufleute, juristische Personen des öffentlichen Rechts oder öffentlich-rechtliche Sondervermögen sind.
(2) Die Zuständigkeit eines Gerichts des ersten Rechtszuges kann ferner vereinbart werden, wenn mindestens eine der Vertragsparteien keinen allgemeinen Gerichtsstand im Inland hat. Die Vereinbarung muss schriftlich abgeschlossen oder, falls sie mündlich getroffen wird, schriftlich bestätigt werden. Hat eine der Parteien einen inländischen allgemeinen Gerichtsstand, so kann für das Inland nur ein Gericht gewählt werden, bei dem diese Partei ihren allgemeinen Gerichtsstand hat oder ein besonderer Gerichtsstand begründet ist.
(3) Im Übrigen ist eine Gerichtsstandsvereinbarung nur zulässig, wenn sie ausdrücklich und schriftlich 1. nach dem Entstehen der Streitigkeit oder 2. für den Fall geschlossen wird, dass die im Klageweg in Anspruch zu nehmende Partei nach Vertragsschluss
ihren Wohnsitz oder gewöhnlichen Aufenthaltsort aus dem Geltungsbereich dieses Gesetzes verlegt oder ihr Wohnsitz oder gewöhnlicher Aufenthalt im Zeitpunkt der Klageerhebung nicht bekannt ist.
§ 39 Zuständigkeit infolge rügeloser Verhandlung
Die Zuständigkeit eines Gerichts des ersten Rechtszuges wird ferner dadurch begründet, dass der Beklagte, ohne die Unzuständigkeit geltend zu machen, zur Hauptsache mündlich verhandelt. Dies gilt nicht, wenn die Belehrung nach § 504 unterblieben ist.
§ 40 Unwirksame und unzulässige Gerichtsstandsvereinbarung
(1) Die Vereinbarung hat keine rechtliche Wirkung, wenn sie nicht auf ein bestimmtes Rechtsverhältnis und die aus ihm entspringenden Rechtsstreitigkeiten sich bezieht.
(2) Eine Vereinbarung ist unzulässig, wenn 1. der Rechtsstreit nichtvermögensrechtliche Ansprüche betrifft, die den Amtsgerichten ohne Rücksicht auf den
Wert des Streitgegenstandes zugewiesen sind, oder 2. für die Klage ein ausschließlicher Gerichtsstand begründet ist. In diesen Fällen wird die Zuständigkeit eines Gerichts auch nicht durch rügeloses Verhandeln zur Hauptsache begründet.
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Ausschließung und Ablehnung der Gerichtspersonen § 41 Ausschluss von der Ausübung des Richteramtes
Ein Richter ist von der Ausübung des Richteramtes kraft Gesetzes ausgeschlossen: 1. in Sachen, in denen er selbst Partei ist oder bei denen er zu einer Partei in dem Verhältnis eines
Mitberechtigten, Mitverpflichteten oder Regresspflichtigen steht; 2. in Sachen seines Ehegatten, auch wenn die Ehe nicht mehr besteht; 2a. in Sachen seines Lebenspartners, auch wenn die Lebenspartnerschaft nicht mehr besteht; 3. in Sachen einer Person, mit der er in gerader Linie verwandt oder verschwägert, in der Seitenlinie bis zum
dritten Grad verwandt oder bis zum zweiten Grad verschwägert ist oder war; 4. in Sachen, in denen er als Prozessbevollmächtigter oder Beistand einer Partei bestellt oder als gesetzlicher
Vertreter einer Partei aufzutreten berechtigt ist oder gewesen ist; 5. in Sachen, in denen er als Zeuge oder Sachverständiger vernommen ist; 6. in Sachen, in denen er in einem früheren Rechtszug oder im schiedsrichterlichen Verfahren bei dem Erlass
der angefochtenen Entscheidung mitgewirkt hat, sofern es sich nicht um die Tätigkeit eines beauftragten oder ersuchten Richters handelt;
7. in Sachen wegen überlanger Gerichtsverfahren, wenn er in dem beanstandeten Verfahren in einem Rechtszug mitgewirkt hat, auf dessen Dauer der Entschädigungsanspruch gestützt wird;
8. in Sachen, in denen er an einem Mediationsverfahren oder einem anderen Verfahren der außergerichtlichen Konfliktbeilegung mitgewirkt hat.
§ 42 Ablehnung eines Richters
(1) Ein Richter kann sowohl in den Fällen, in denen er von der Ausübung des Richteramts kraft Gesetzes ausgeschlossen ist, als auch wegen Besorgnis der Befangenheit abgelehnt werden.
(2) Wegen Besorgnis der Befangenheit findet die Ablehnung statt, wenn ein Grund vorliegt, der geeignet ist, Misstrauen gegen die Unparteilichkeit eines Richters zu rechtfertigen.
(3) Das Ablehnungsrecht steht in jedem Fall beiden Parteien zu.
§ 43 Verlust des Ablehnungsrechts
Eine Partei kann einen Richter wegen Besorgnis der Befangenheit nicht mehr ablehnen, wenn sie sich bei ihm, ohne den ihr bekannten Ablehnungsgrund geltend zu machen, in eine Verhandlung eingelassen oder Anträge gestellt hat.
§ 44 Ablehnungsgesuch
(1) Das Ablehnungsgesuch ist bei dem Gericht, dem der Richter angehört, anzubringen; es kann vor der Geschäftsstelle zu Protokoll erklärt werden.
(2) Der Ablehnungsgrund ist glaubhaft zu machen; zur Versicherung an Eides statt darf die Partei nicht zugelassen werden. Zur Glaubhaftmachung kann auf das Zeugnis des abgelehnten Richters Bezug genommen werden.
(3) Der abgelehnte Richter hat sich über den Ablehnungsgrund dienstlich zu äußern.
(4) Wird ein Richter, bei dem die Partei sich in eine Verhandlung eingelassen oder Anträge gestellt hat, wegen Besorgnis der Befangenheit abgelehnt, so ist glaubhaft zu machen, dass der Ablehnungsgrund erst später entstanden oder der Partei bekannt geworden sei.
§ 45 Entscheidung über das Ablehnungsgesuch
(1) Über das Ablehnungsgesuch entscheidet das Gericht, dem der Abgelehnte angehört, ohne dessen Mitwirkung.
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(2) Wird ein Richter beim Amtsgericht abgelehnt, so entscheidet ein anderer Richter des Amtsgerichts über das Gesuch. Einer Entscheidung bedarf es nicht, wenn der abgelehnte Richter das Ablehnungsgesuch für begründet hält.
(3) Wird das zur Entscheidung berufene Gericht durch Ausscheiden des abgelehnten Mitglieds beschlussunfähig, so entscheidet das im Rechtszug zunächst höhere Gericht.
§ 46 Entscheidung und Rechtsmittel
(1) Die Entscheidung über das Ablehnungsgesuch ergeht durch Beschluss.
(2) Gegen den Beschluss, durch den das Gesuch für begründet erklärt wird, findet kein Rechtsmittel, gegen den Beschluss, durch den das Gesuch für unbegründet erklärt wird, findet sofortige Beschwerde statt.
§ 47 Unaufschiebbare Amtshandlungen
(1) Ein abgelehnter Richter hat vor Erledigung des Ablehnungsgesuchs nur solche Handlungen vorzunehmen, die keinen Aufschub gestatten.
(2) Wird ein Richter während der Verhandlung abgelehnt und würde die Entscheidung über die Ablehnung eine Vertagung der Verhandlung erfordern, so kann der Termin unter Mitwirkung des abgelehnten Richters fortgesetzt werden. Wird die Ablehnung für begründet erklärt, so ist der nach Anbringung des Ablehnungsgesuchs liegende Teil der Verhandlung zu wiederholen.
§ 48 Selbstablehnung; Ablehnung von Amts wegen
Das für die Erledigung eines Ablehnungsgesuchs zuständige Gericht hat auch dann zu entscheiden, wenn ein solches Gesuch nicht angebracht ist, ein Richter aber von einem Verhältnis Anzeige macht, das seine Ablehnung rechtfertigen könnte, oder wenn aus anderer Veranlassung Zweifel darüber entstehen, ob ein Richter kraft Gesetzes ausgeschlossen sei.
§ 49 Urkundsbeamte
Die Vorschriften dieses Titels sind auf den Urkundsbeamten der Geschäftsstelle entsprechend anzuwenden; die Entscheidung ergeht durch das Gericht, bei dem er angestellt ist.
Abschnitt 2 Parteien
Titel 1 Parteifähigkeit; Prozessfähigkeit § 50 Parteifähigkeit
(1) Parteifähig ist, wer rechtsfähig ist.
(2) Ein Verein, der nicht rechtsfähig ist, kann klagen und verklagt werden; in dem Rechtsstreit hat der Verein die Stellung eines rechtsfähigen Vereins.
§ 51 Prozessfähigkeit; gesetzliche Vertretung; Prozessführung
(1) Die Fähigkeit einer Partei, vor Gericht zu stehen, die Vertretung nicht prozessfähiger Parteien durch andere Personen (gesetzliche Vertreter) und die Notwendigkeit einer besonderen Ermächtigung zur Prozessführung bestimmt sich nach den Vorschriften des bürgerlichen Rechts, soweit nicht die nachfolgenden Paragraphen abweichende Vorschriften enthalten.
(2) Das Verschulden eines gesetzlichen Vertreters steht dem Verschulden der Partei gleich.
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(3) Hat eine nicht prozessfähige Partei, die eine volljährige natürliche Person ist, wirksam eine andere natürliche Person schriftlich mit ihrer gerichtlichen Vertretung bevollmächtigt, so steht diese Person einem gesetzlichen Vertreter gleich, wenn die Bevollmächtigung geeignet ist, gemäß § 1896 Abs. 2 Satz 2 des Bürgerlichen Gesetzbuchs die Erforderlichkeit einer Betreuung entfallen zu lassen.
§ 52 Umfang der Prozessfähigkeit
(1) Eine Person ist insoweit prozessfähig, als sie sich durch Verträge verpflichten kann.
§ 53 Prozessunfähigkeit bei Betreuung oder Pflegschaft
Wird in einem Rechtsstreit eine prozessfähige Person durch einen Betreuer oder Pfleger vertreten, so steht sie für den Rechtsstreit einer nicht prozessfähigen Person gleich.
§ 53a (weggefallen)
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§ 54 Besondere Ermächtigung zu Prozesshandlungen
Einzelne Prozesshandlungen, zu denen nach den Vorschriften des bürgerlichen Rechts eine besondere Ermächtigung erforderlich ist, sind ohne sie gültig, wenn die Ermächtigung zur Prozessführung im Allgemeinen erteilt oder die Prozessführung auch ohne eine solche Ermächtigung im Allgemeinen statthaft ist.
§ 55 Prozessfähigkeit von Ausländern
Ein Ausländer, dem nach dem Recht seines Landes die Prozessfähigkeit mangelt, gilt als prozessfähig, wenn ihm nach dem Recht des Prozessgerichts die Prozessfähigkeit zusteht.
§ 56 Prüfung von Amts wegen
(1) Das Gericht hat den Mangel der Parteifähigkeit, der Prozessfähigkeit, der Legitimation eines gesetzlichen Vertreters und der erforderlichen Ermächtigung zur Prozessführung von Amts wegen zu berücksichtigen.
(2) Die Partei oder deren gesetzlicher Vertreter kann zur Prozessführung mit Vorbehalt der Beseitigung des Mangels zugelassen werden, wenn mit dem Verzug Gefahr für die Partei verbunden ist. Das Endurteil darf erst erlassen werden, nachdem die für die Beseitigung des Mangels zu bestimmende Frist abgelaufen ist.
§ 57 Prozesspfleger
(1) Soll eine nicht prozessfähige Partei verklagt werden, die ohne gesetzlichen Vertreter ist, so hat ihr der Vorsitzende des Prozessgerichts, falls mit dem Verzug Gefahr verbunden ist, auf Antrag bis zu dem Eintritt des gesetzlichen Vertreters einen besonderen Vertreter zu bestellen.
(2) Der Vorsitzende kann einen solchen Vertreter auch bestellen, wenn in den Fällen des § 20 eine nicht prozessfähige Person bei dem Gericht ihres Aufenthaltsortes verklagt werden soll.
§ 58 Prozesspfleger bei herrenlosem Grundstück oder Schiff
(1) Soll ein Recht an einem Grundstück, das von dem bisherigen Eigentümer nach § 928 des Bürgerlichen Gesetzbuchs aufgegeben und von dem Aneignungsberechtigten noch nicht erworben worden ist, im Wege der Klage geltend gemacht werden, so hat der Vorsitzende des Prozessgerichts auf Antrag einen Vertreter zu bestellen, dem bis zur Eintragung eines neuen Eigentümers die Wahrnehmung der sich aus dem Eigentum ergebenden Rechte und Verpflichtungen im Rechtsstreit obliegt.
(2) Absatz 1 gilt entsprechend, wenn im Wege der Klage ein Recht an einem eingetragenen Schiff oder Schiffsbauwerk geltend gemacht werden soll, das von dem bisherigen Eigentümer nach § 7 des Gesetzes über Rechte an eingetragenen Schiffen und Schiffsbauwerken vom 15. November 1940 (RGBl. I S. 1499) aufgegeben und von dem Aneignungsberechtigten noch nicht erworben worden ist.
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Streitgenossenschaft § 59 Streitgenossenschaft bei Rechtsgemeinschaft oder Identität des Grundes
Mehrere Personen können als Streitgenossen gemeinschaftlich klagen oder verklagt werden, wenn sie hinsichtlich des Streitgegenstandes in Rechtsgemeinschaft stehen oder wenn sie aus demselben tatsächlichen und rechtlichen Grund berechtigt oder verpflichtet sind.
§ 60 Streitgenossenschaft bei Gleichartigkeit der Ansprüche
Mehrere Personen können auch dann als Streitgenossen gemeinschaftlich klagen oder verklagt werden, wenn gleichartige und auf einem im Wesentlichen gleichartigen tatsächlichen und rechtlichen Grund beruhende Ansprüche oder Verpflichtungen den Gegenstand des Rechtsstreits bilden.
§ 61 Wirkung der Streitgenossenschaft
Streitgenossen stehen, soweit nicht aus den Vorschriften des bürgerlichen Rechts oder dieses Gesetzes sich ein anderes ergibt, dem Gegner dergestalt als Einzelne gegenüber, dass die Handlungen des einen Streitgenossen dem anderen weder zum Vorteil noch zum Nachteil gereichen.
§ 62 Notwendige Streitgenossenschaft
(1) Kann das streitige Rechtsverhältnis allen Streitgenossen gegenüber nur einheitlich festgestellt werden oder ist die Streitgenossenschaft aus einem sonstigen Grund eine notwendige, so werden, wenn ein Termin oder eine Frist nur von einzelnen Streitgenossen versäumt wird, die säumigen Streitgenossen als durch die nicht säumigen vertreten angesehen.
(2) Die säumigen Streitgenossen sind auch in dem späteren Verfahren zuzuziehen.
§ 63 Prozessbetrieb; Ladungen
Das Recht zur Betreibung des Prozesses steht jedem Streitgenossen zu; zu allen Terminen sind sämtliche Streitgenossen zu laden.
Titel 3 Beteiligung Dritter am Rechtsstreit § 64 Hauptintervention
Wer die Sache oder das Recht, worüber zwischen anderen Personen ein Rechtsstreit anhängig geworden ist, ganz oder teilweise für sich in Anspruch nimmt, ist bis zur rechtskräftigen Entscheidung dieses Rechtsstreits berechtigt, seinen Anspruch durch eine gegen beide Parteien gerichtete Klage bei dem Gericht geltend zu machen, vor dem der Rechtsstreit im ersten Rechtszug anhängig wurde.
§ 65 Aussetzung des Hauptprozesses
Der Hauptprozess kann auf Antrag einer Partei bis zur rechtskräftigen Entscheidung über die Hauptintervention ausgesetzt werden.
§ 66 Nebenintervention
(1) Wer ein rechtliches Interesse daran hat, dass in einem zwischen anderen Personen anhängigen Rechtsstreit die eine Partei obsiege, kann dieser Partei zum Zwecke ihrer Unterstützung beitreten.
(2) Die Nebenintervention kann in jeder Lage des Rechtsstreits bis zur rechtskräftigen Entscheidung, auch in Verbindung mit der Einlegung eines Rechtsmittels, erfolgen.
§ 67 Rechtsstellung des Nebenintervenienten
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Der Nebenintervenient muss den Rechtsstreit in der Lage annehmen, in der er sich zur Zeit seines Beitritts befindet; er ist berechtigt, Angriffs- und Verteidigungsmittel geltend zu machen und alle Prozesshandlungen wirksam vorzunehmen, insoweit nicht seine Erklärungen und Handlungen mit Erklärungen und Handlungen der Hauptpartei in Widerspruch stehen.
§ 68 Wirkung der Nebenintervention
Der Nebenintervenient wird im Verhältnis zu der Hauptpartei mit der Behauptung nicht gehört, dass der Rechtsstreit, wie er dem Richter vorgelegen habe, unrichtig entschieden sei; er wird mit der Behauptung, dass die Hauptpartei den Rechtsstreit mangelhaft geführt habe, nur insoweit gehört, als er durch die Lage des Rechtsstreits zur Zeit seines Beitritts oder durch Erklärungen und Handlungen der Hauptpartei verhindert worden ist, Angriffs- oder Verteidigungsmittel geltend zu machen, oder als Angriffs- oder Verteidigungsmittel, die ihm unbekannt waren, von der Hauptpartei absichtlich oder durch grobes Verschulden nicht geltend gemacht sind.
§ 69 Streitgenössische Nebenintervention
Insofern nach den Vorschriften des bürgerlichen Rechts die Rechtskraft der in dem Hauptprozess erlassenen Entscheidung auf das Rechtsverhältnis des Nebenintervenienten zu dem Gegner von Wirksamkeit ist, gilt der Nebenintervenient im Sinne des § 61 als Streitgenosse der Hauptpartei.
§ 70 Beitritt des Nebenintervenienten
(1) Der Beitritt des Nebenintervenienten erfolgt durch Einreichung eines Schriftsatzes bei dem Prozessgericht und, wenn er mit der Einlegung eines Rechtsmittels verbunden wird, durch Einreichung eines Schriftsatzes bei dem Rechtsmittelgericht. Der Schriftsatz ist beiden Parteien zuzustellen und muss enthalten: 1. die Bezeichnung der Parteien und des Rechtsstreits; 2. die bestimmte Angabe des Interesses, das der Nebenintervenient hat; 3. die Erklärung des Beitritts.
(2) Außerdem gelten die allgemeinen Vorschriften über die vorbereitenden Schriftsätze.
§ 71 Zwischenstreit über Nebenintervention
(1) Über den Antrag auf Zurückweisung einer Nebenintervention wird nach mündlicher Verhandlung unter den Parteien und dem Nebenintervenienten entschieden. Der Nebenintervenient ist zuzulassen, wenn er sein Interesse glaubhaft macht.
(2) Gegen das Zwischenurteil findet sofortige Beschwerde statt.
(3) Solange nicht die Unzulässigkeit der Intervention rechtskräftig ausgesprochen ist, wird der Intervenient im Hauptverfahren zugezogen.
§ 72 Zulässigkeit der Streitverkündung
(1) Eine Partei, die für den Fall des ihr ungünstigen Ausganges des Rechtsstreits einen Anspruch auf Gewährleistung oder Schadloshaltung gegen einen Dritten erheben zu können glaubt oder den Anspruch eines Dritten besorgt, kann bis zur rechtskräftigen Entscheidung des Rechtsstreits dem Dritten gerichtlich den Streit verkünden.
(2) Das Gericht und ein vom Gericht ernannter Sachverständiger sind nicht Dritter im Sinne dieser Vorschrift. § 73 Satz 2 ist nicht anzuwenden.
(3) Der Dritte ist zu einer weiteren Streitverkündung berechtigt.
§ 73 Form der Streitverkündung
Zum Zwecke der Streitverkündung hat die Partei einen Schriftsatz einzureichen, in dem der Grund der Streitverkündung und die Lage des Rechtsstreits anzugeben ist. Der Schriftsatz ist dem Dritten zuzustellen und
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dem Gegner des Streitverkünders in Abschrift mitzuteilen. Die Streitverkündung wird erst mit der Zustellung an den Dritten wirksam.
§ 74 Wirkung der Streitverkündung
(1) Wenn der Dritte dem Streitverkünder beitritt, so bestimmt sich sein Verhältnis zu den Parteien nach den Grundsätzen über die Nebenintervention.
(2) Lehnt der Dritte den Beitritt ab oder erklärt er sich nicht, so wird der Rechtsstreit ohne Rücksicht auf ihn fortgesetzt.
(3) In allen Fällen dieses Paragraphen sind gegen den Dritten die Vorschriften des § 68 mit der Abweichung anzuwenden, dass statt der Zeit des Beitritts die Zeit entscheidet, zu welcher der Beitritt infolge der Streitverkündung möglich war.
§ 75 Gläubigerstreit
Wird von dem verklagten Schuldner einem Dritten, der die geltend gemachte Forderung für sich in Anspruch nimmt, der Streit verkündet und tritt der Dritte in den Streit ein, so ist der Beklagte, wenn er den Betrag der Forderung zugunsten der streitenden Gläubiger unter Verzicht auf das Recht zur Rücknahme hinterlegt, auf seinen Antrag aus dem Rechtsstreit unter Verurteilung in die durch seinen unbegründeten Widerspruch veranlassten Kosten zu entlassen und der Rechtsstreit über die Berechtigung an der Forderung zwischen den streitenden Gläubigern allein fortzusetzen. Dem Obsiegenden ist der hinterlegte Betrag zuzusprechen und der Unterliegende auch zur Erstattung der dem Beklagten entstandenen, nicht durch dessen unbegründeten Widerspruch veranlassten Kosten, einschließlich der Kosten der Hinterlegung, zu verurteilen.
§ 76 Urheberbenennung bei Besitz
(1) Wer als Besitzer einer Sache verklagt ist, die er auf Grund eines Rechtsverhältnisses der im § 868 des Bürgerlichen Gesetzbuchs bezeichneten Art zu besitzen behauptet, kann vor der Verhandlung zur Hauptsache unter Einreichung eines Schriftsatzes, in dem er den mittelbaren Besitzer benennt, und einer Streitverkündungsschrift die Ladung des mittelbaren Besitzers zur Erklärung beantragen. Bis zu dieser Erklärung oder bis zum Schluss des Termins, in dem sich der Benannte zu erklären hat, kann der Beklagte die Verhandlung zur Hauptsache verweigern.
(2) Bestreitet der Benannte die Behauptung des Beklagten oder erklärt er sich nicht, so ist der Beklagte berechtigt, dem Klageantrage zu genügen.
(3) Wird die Behauptung des Beklagten von dem Benannten als richtig anerkannt, so ist dieser berechtigt, mit Zustimmung des Beklagten an dessen Stelle den Prozess zu übernehmen. Die Zustimmung des Klägers ist nur insoweit erforderlich, als er Ansprüche geltend macht, die unabhängig davon sind, dass der Beklagte auf Grund eines Rechtsverhältnisses der im Absatz 1 bezeichneten Art besitzt.
(4) Hat der Benannte den Prozess übernommen, so ist der Beklagte auf seinen Antrag von der Klage zu entbinden. Die Entscheidung ist in Ansehung der Sache selbst auch gegen den Beklagten wirksam und vollstreckbar.
§ 77 Urheberbenennung bei Eigentumsbeeinträchtigung
Ist von dem Eigentümer einer Sache oder von demjenigen, dem ein Recht an einer Sache zusteht, wegen einer Beeinträchtigung des Eigentums oder seines Rechts Klage auf Beseitigung der Beeinträchtigung oder auf Unterlassung weiterer Beeinträchtigungen erhoben, so sind die Vorschriften des § 76 entsprechend anzuwenden, sofern der Beklagte die Beeinträchtigung in Ausübung des Rechtes eines Dritten vorgenommen zu haben behauptet.
Titel 4 Prozessbevollmächtigte und Beistände § 78 Anwaltsprozess
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(1) Vor den Landgerichten und Oberlandesgerichten müssen sich die Parteien durch einen Rechtsanwalt vertreten lassen. Ist in einem Land auf Grund des § 8 des Einführungsgesetzes zum Gerichtsverfassungsgesetz ein oberstes Landesgericht errichtet, so müssen sich die Parteien vor diesem ebenfalls durch einen Rechtsanwalt vertreten lassen. Vor dem Bundesgerichtshof müssen sich die Parteien durch einen bei dem Bundesgerichtshof zugelassenen Rechtsanwalt vertreten lassen.
(2) Behörden und juristische Personen des öffentlichen Rechts einschließlich der von ihnen zur Erfüllung ihrer öffentlichen Aufgaben gebildeten Zusammenschlüsse können sich als Beteiligte für die Nichtzulassungsbeschwerde durch eigene Beschäftigte mit Befähigung zum Richteramt oder durch Beschäftigte mit Befähigung zum Richteramt anderer Behörden oder juristischer Personen des öffentlichen Rechts einschließlich der von ihnen zur Erfüllung ihrer öffentlichen Aufgaben gebildeten Zusammenschlüsse vertreten lassen.
(3) Diese Vorschriften sind auf das Verfahren vor einem beauftragten oder ersuchten Richter sowie auf Prozesshandlungen, die vor dem Urkundsbeamten der Geschäftsstelle vorgenommen werden können, nicht anzuwenden.
(4) Ein Rechtsanwalt, der nach Maßgabe der Absätze 1 und 2 zur Vertretung berechtigt ist, kann sich selbst vertreten.
§ 78a
(weggefallen)
§ 78b Notanwalt
(1) Insoweit eine Vertretung durch Anwälte geboten ist, hat das Prozessgericht einer Partei auf ihren Antrag durch Beschluss für den Rechtszug einen Rechtsanwalt zur Wahrnehmung ihrer Rechte beizuordnen, wenn sie einen zu ihrer Vertretung bereiten Rechtsanwalt nicht findet und die Rechtsverfolgung oder Rechtsverteidigung nicht mutwillig oder aussichtslos erscheint.
(2) Gegen den Beschluss, durch den die Beiordnung eines Rechtsanwalts abgelehnt wird, findet die sofortige Beschwerde statt.
§ 78c Auswahl des Rechtsanwalts
(1) Der nach § 78b beizuordnende Rechtsanwalt wird durch den Vorsitzenden des Gerichts aus der Zahl der in dem Bezirk des Prozessgerichts niedergelassenen Rechtsanwälte ausgewählt.
(2) Der beigeordnete Rechtsanwalt kann die Übernahme der Vertretung davon abhängig machen, dass die Partei ihm einen Vorschuss zahlt, der nach dem Rechtsanwaltsvergütungsgesetz zu bemessen ist.
(3) Gegen eine Verfügung, die nach Absatz 1 getroffen wird, steht der Partei und dem Rechtsanwalt die sofortige Beschwerde zu. Dem Rechtsanwalt steht die sofortige Beschwerde auch zu, wenn der Vorsitzende des Gerichts den Antrag, die Beiordnung aufzuheben (§ 48 Abs. 2 der Bundesrechtsanwaltsordnung), ablehnt.
§ 79 Parteiprozess
(1) Soweit eine Vertretung durch Rechtsanwälte nicht geboten ist, können die Parteien den Rechtsstreit selbst führen. Parteien, die eine fremde oder ihnen zum Zweck der Einziehung auf fremde Rechnung abgetretene Geldforderung geltend machen, müssen sich durch einen Rechtsanwalt als Bevollmächtigten vertreten lassen, soweit sie nicht nach Maßgabe des Absatzes 2 zur Vertretung des Gläubigers befugt wären oder eine Forderung einziehen, deren ursprünglicher Gläubiger sie sind.
(2) Die Parteien können sich durch einen Rechtsanwalt als Bevollmächtigten vertreten lassen. Darüber hinaus sind als Bevollmächtigte vertretungsbefugt nur 1. Beschäftigte der Partei oder eines mit ihr verbundenen Unternehmens (§ 15 des Aktiengesetzes); Behörden
und juristische Personen des öffentlichen Rechts einschließlich der von ihnen zur Erfüllung ihrer öffentlichen Aufgaben gebildeten Zusammenschlüsse können sich auch durch Beschäftigte anderer Behörden oder
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juristischer Personen des öffentlichen Rechts einschließlich der von ihnen zur Erfüllung ihrer öffentlichen Aufgaben gebildeten Zusammenschlüsse vertreten lassen,
2. volljährige Familienangehörige (§ 15 der Abgabenordnung, § 11 des Lebenspartnerschaftsgesetzes), Personen mit Befähigung zum Richteramt und Streitgenossen, wenn die Vertretung nicht im Zusammenhang mit einer entgeltlichen Tätigkeit steht,
3. Verbraucherzentralen und andere mit öffentlichen Mitteln geförderte Verbraucherverbände bei der Einziehung von Forderungen von Verbrauchern im Rahmen ihres Aufgabenbereichs,
4. Personen, die Inkassodienstleistungen erbringen (registrierte Personen nach § 10 Abs. 1 Satz 1 Nr. 1 des Rechtsdienstleistungsgesetzes) im Mahnverfahren bis zur Abgabe an das Streitgericht, bei Vollstreckungsanträgen im Verfahren der Zwangsvollstreckung in das bewegliche Vermögen wegen Geldforderungen einschließlich des Verfahrens zur Abnahme der eidesstattlichen Versicherung und des Antrags auf Erlass eines Haftbefehls, jeweils mit Ausnahme von Verfahrenshandlungen, die ein streitiges Verfahren einleiten oder innerhalb eines streitigen Verfahrens vorzunehmen sind.
Bevollmächtigte, die keine natürlichen Personen sind, handeln durch ihre Organe und mit der Prozessvertretung beauftragten Vertreter.
(3) Das Gericht weist Bevollmächtigte, die nicht nach Maßgabe des Absatzes 2 vertretungsbefugt sind, durch unanfechtbaren Beschluss zurück. Prozesshandlungen eines nicht vertretungsbefugten Bevollmächtigten und Zustellungen oder Mitteilungen an diesen Bevollmächtigten sind bis zu seiner Zurückweisung wirksam. Das Gericht kann den in Absatz 2 Satz 2 Nr. 1 bis 3 bezeichneten Bevollmächtigten durch unanfechtbaren Beschluss die weitere Vertretung untersagen, wenn sie nicht in der Lage sind, das Sach- und Streitverhältnis sachgerecht darzustellen.
(4) Richter dürfen nicht als Bevollmächtigte vor einem Gericht auftreten, dem sie angehören. Ehrenamtliche Richter dürfen, außer in den Fällen des Absatzes 2 Satz 2 Nr. 1, nicht vor einem Spruchkörper auftreten, dem sie angehören. Absatz 3 Satz 1 und 2 gilt entsprechend.
§ 80 Prozessvollmacht
Die Vollmacht ist schriftlich zu den Gerichtsakten einzureichen. Sie kann nachgereicht werden; hierfür kann das Gericht eine Frist bestimmen.
§ 81 Umfang der Prozessvollmacht
Die Prozessvollmacht ermächtigt zu allen den Rechtsstreit betreffenden Prozesshandlungen, einschließlich derjenigen, die durch eine Widerklage, eine Wiederaufnahme des Verfahrens, eine Rüge nach § 321a und die Zwangsvollstreckung veranlasst werden; zur Bestellung eines Vertreters sowie eines Bevollmächtigten für die höheren Instanzen; zur Beseitigung des Rechtsstreits durch Vergleich, Verzichtleistung auf den Streitgegenstand oder Anerkennung des von dem Gegner geltend gemachten Anspruchs; zur Empfangnahme der von dem Gegner oder aus der Staatskasse zu erstattenden Kosten.
§ 82 Geltung für Nebenverfahren
Die Vollmacht für den Hauptprozess umfasst die Vollmacht für das eine Hauptintervention, einen Arrest oder eine einstweilige Verfügung betreffende Verfahren.
§ 83 Beschränkung der Prozessvollmacht
(1) Eine Beschränkung des gesetzlichen Umfanges der Vollmacht hat dem Gegner gegenüber nur insoweit rechtliche Wirkung, als diese Beschränkung die Beseitigung des Rechtsstreits durch Vergleich, Verzichtleistung auf den Streitgegenstand oder Anerkennung des von dem Gegner geltend gemachten Anspruchs betrifft.
(2) Insoweit eine Vertretung durch Anwälte nicht geboten ist, kann eine Vollmacht für einzelne Prozesshandlungen erteilt werden.
§ 84 Mehrere Prozessbevollmächtigte
Mehrere Bevollmächtigte sind berechtigt, sowohl gemeinschaftlich als einzeln die Partei zu vertreten. Eine abweichende Bestimmung der Vollmacht hat dem Gegner gegenüber keine rechtliche Wirkung.
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§ 85 Wirkung der Prozessvollmacht
(1) Die von dem Bevollmächtigten vorgenommenen Prozesshandlungen sind für die Partei in gleicher Art verpflichtend, als wenn sie von der Partei selbst vorgenommen wären. Dies gilt von Geständnissen und anderen tatsächlichen Erklärungen, insoweit sie nicht von der miterschienenen Partei sofort widerrufen oder berichtigt werden.
(2) Das Verschulden des Bevollmächtigten steht dem Verschulden der Partei gleich.
Fußnote
§ 85 Abs. 2: Mit dem GG nach Maßgabe der Entscheidungsformel vereinbar, BVerfGE v. 20.4.1982 I 1169 - 2 BvL 26/81 -
§ 86 Fortbestand der Prozessvollmacht
Die Vollmacht wird weder durch den Tod des Vollmachtgebers noch durch eine Veränderung in seiner Prozessfähigkeit oder seiner gesetzlichen Vertretung aufgehoben; der Bevollmächtigte hat jedoch, wenn er nach Aussetzung des Rechtsstreits für den Nachfolger im Rechtsstreit auftritt, dessen Vollmacht beizubringen.
§ 87 Erlöschen der Vollmacht
(1) Dem Gegner gegenüber erlangt die Kündigung des Vollmachtvertrags erst durch die Anzeige des Erlöschens der Vollmacht, in Anwaltsprozessen erst durch die Anzeige der Bestellung eines anderen Anwalts rechtliche Wirksamkeit.
(2) Der Bevollmächtigte wird durch die von seiner Seite erfolgte Kündigung nicht gehindert, für den Vollmachtgeber so lange zu handeln, bis dieser für Wahrnehmung seiner Rechte in anderer Weise gesorgt hat.
§ 88 Mangel der Vollmacht
(1) Der Mangel der Vollmacht kann von dem Gegner in jeder Lage des Rechtsstreits gerügt werden.
(2) Das Gericht hat den Mangel der Vollmacht von Amts wegen zu berücksichtigen, wenn nicht als Bevollmächtigter ein Rechtsanwalt auftritt.
§ 89 Vollmachtloser Vertreter
(1) Handelt jemand für eine Partei als Geschäftsführer ohne Auftrag oder als Bevollmächtigter ohne Beibringung einer Vollmacht, so kann er gegen oder ohne Sicherheitsleistung für Kosten und Schäden zur Prozessführung einstweilen zugelassen werden. Das Endurteil darf erst erlassen werden, nachdem die für die Beibringung der Genehmigung zu bestimmende Frist abgelaufen ist. Ist zu der Zeit, zu der das Endurteil erlassen wird, die Genehmigung nicht beigebracht, so ist der einstweilen zur Prozessführung Zugelassene zum Ersatz der dem Gegner infolge der Zulassung erwachsenen Kosten zu verurteilen; auch hat er dem Gegner die infolge der Zulassung entstandenen Schäden zu ersetzen.
(2) Die Partei muss die Prozessführung gegen sich gelten lassen, wenn sie auch nur mündlich Vollmacht erteilt oder wenn sie die Prozessführung ausdrücklich oder stillschweigend genehmigt hat.
§ 90 Beistand
(1) In der Verhandlung können die Parteien mit Beiständen erscheinen. Beistand kann sein, wer in Verfahren, in denen die Partei den Rechtsstreit selbst führen kann, als Bevollmächtigter zur Vertretung in der Verhandlung befugt ist. Das Gericht kann andere Personen als Beistand zulassen, wenn dies sachdienlich ist und hierfür nach den Umständen des Einzelfalls ein Bedürfnis besteht. § 79 Abs. 3 Satz 1 und 3 und Abs. 4 gilt entsprechend.
(2) Das von dem Beistand Vorgetragene gilt als von der Partei vorgebracht, insoweit es nicht von dieser sofort widerrufen oder berichtigt wird.
Titel 5
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Prozesskosten § 91 Grundsatz und Umfang der Kostenpflicht
(1) Die unterliegende Partei hat die Kosten des Rechtsstreits zu tragen, insbesondere die dem Gegner erwachsenen Kosten zu erstatten, soweit sie zur zweckentsprechenden Rechtsverfolgung oder Rechtsverteidigung notwendig waren. Die Kostenerstattung umfasst auch die Entschädigung des Gegners für die durch notwendige Reisen oder durch die notwendige Wahrnehmung von Terminen entstandene Zeitversäumnis; die für die Entschädigung von Zeugen geltenden Vorschriften sind entsprechend anzuwenden.
(2) Die gesetzlichen Gebühren und Auslagen des Rechtsanwalts der obsiegenden Partei sind in allen Prozessen zu erstatten, Reisekosten eines Rechtsanwalts, der nicht in dem Bezirk des Prozessgerichts niedergelassen ist und am Ort des Prozessgerichts auch nicht wohnt, jedoch nur insoweit, als die Zuziehung zur zweckentsprechenden Rechtsverfolgung oder Rechtsverteidigung notwendig war. Die Kosten mehrerer Rechtsanwälte sind nur insoweit zu erstatten, als sie die Kosten eines Rechtsanwalts nicht übersteigen oder als in der Person des Rechtsanwalts ein Wechsel eintreten musste. In eigener Sache sind dem Rechtsanwalt die Gebühren und Auslagen zu erstatten, die er als Gebühren und Auslagen eines bevollmächtigten Rechtsanwalts erstattet verlangen könnte.
(3) Zu den Kosten des Rechtsstreits im Sinne der Absätze 1, 2 gehören auch die Gebühren, die durch ein Güteverfahren vor einer durch die Landesjustizverwaltung eingerichteten oder anerkannten Gütestelle entstanden sind; dies gilt nicht, wenn zwischen der Beendigung des Güteverfahrens und der Klageerhebung mehr als ein Jahr verstrichen ist.
(4) Zu den Kosten des Rechtsstreits im Sinne von Absatz 1 gehören auch Kosten, die die obsiegende Partei der unterlegenen Partei im Verlaufe des Rechtsstreits gezahlt hat.
§ 91a Kosten bei Erledigung der Hauptsache
(1) Haben die Parteien in der mündlichen Verhandlung oder durch Einreichung eines Schriftsatzes oder zu Protokoll der Geschäftsstelle den Rechtsstreit in der Hauptsache für erledigt erklärt, so entscheidet das Gericht über die Kosten unter Berücksichtigung des bisherigen Sach- und Streitstandes nach billigem Ermessen durch Beschluss. Dasselbe gilt, wenn der Beklagte der Erledigungserklärung des Klägers nicht innerhalb einer Notfrist von zwei Wochen seit der Zustellung des Schriftsatzes widerspricht, wenn der Beklagte zuvor auf diese Folge hingewiesen worden ist.
(2) Gegen die Entscheidung findet die sofortige Beschwerde statt. Dies gilt nicht, wenn der Streitwert der Hauptsache den in § 511 genannten Betrag nicht übersteigt. Vor der Entscheidung über die Beschwerde ist der Gegner zu hören.
§ 92 Kosten bei teilweisem Obsiegen
(1) Wenn jede Partei teils obsiegt, teils unterliegt, so sind die Kosten gegeneinander aufzuheben oder verhältnismäßig zu teilen. Sind die Kosten gegeneinander aufgehoben, so fallen die Gerichtskosten jeder Partei zur Hälfte zur Last.
(2) Das Gericht kann der einen Partei die gesamten Prozesskosten auferlegen, wenn 1. die Zuvielforderung der anderen Partei verhältnismäßig geringfügig war und keine oder nur geringfügig
höhere Kosten veranlasst hat oder 2. der Betrag der Forderung der anderen Partei von der Festsetzung durch richterliches Ermessen, von der
Ermittlung durch Sachverständige oder von einer gegenseitigen Berechnung abhängig war.
§ 93 Kosten bei sofortigem Anerkenntnis
Hat der Beklagte nicht durch sein Verhalten zur Erhebung der Klage Veranlassung gegeben, so fallen dem Kläger die Prozesskosten zur Last, wenn der Beklagte den Anspruch sofort anerkennt.
§ 93a (weggefallen)
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§ 93b Kosten bei Räumungsklagen
(1) Wird einer Klage auf Räumung von Wohnraum mit Rücksicht darauf stattgegeben, dass ein Verlangen des Beklagten auf Fortsetzung des Mietverhältnisses auf Grund der §§ 574 bis 574b des Bürgerlichen Gesetzbuchs wegen der berechtigten Interessen des Klägers nicht gerechtfertigt ist, so kann das Gericht die Kosten ganz oder teilweise dem Kläger auferlegen, wenn der Beklagte die Fortsetzung des Mietverhältnisses unter Angabe von Gründen verlangt hatte und der Kläger aus Gründen obsiegt, die erst nachträglich entstanden sind (§ 574 Abs. 3 des Bürgerlichen Gesetzbuchs). Dies gilt in einem Rechtsstreit wegen Fortsetzung des Mietverhältnisses bei Abweisung der Klage entsprechend.
(2) Wird eine Klage auf Räumung von Wohnraum mit Rücksicht darauf abgewiesen, dass auf Verlangen des Beklagten die Fortsetzung des Mietverhältnisses auf Grund der §§ 574 bis 574b des Bürgerlichen Gesetzbuchs bestimmt wird, so kann das Gericht die Kosten ganz oder teilweise dem Beklagten auferlegen, wenn er auf Verlangen des Klägers nicht unverzüglich über die Gründe des Widerspruchs Auskunft erteilt hat. Dies gilt in einem Rechtsstreit wegen Fortsetzung des Mietverhältnisses entsprechend, wenn der Klage stattgegeben wird.
(3) Erkennt der Beklagte den Anspruch auf Räumung von Wohnraum sofort an, wird ihm jedoch eine Räumungsfrist bewilligt, so kann das Gericht die Kosten ganz oder teilweise dem Kläger auferlegen, wenn der Beklagte bereits vor Erhebung der Klage unter Angabe von Gründen die Fortsetzung des Mietverhältnisses oder eine den Umständen nach angemessene Räumungsfrist vom Kläger vergeblich begehrt hatte.
§ 93c (weggefallen)
-
§ 93d (weggefallen)
-
§ 94 Kosten bei übergegangenem Anspruch
Macht der Kläger einen auf ihn übergangenen Anspruch geltend, ohne dass er vor der Erhebung der Klage dem Beklagten den Übergang mitgeteilt und auf Verlangen nachgewiesen hat, so fallen ihm die Prozesskosten insoweit zur Last, als sie dadurch entstanden sind, dass der Beklagte durch die Unterlassung der Mitteilung oder des Nachweises veranlasst worden ist, den Anspruch zu bestreiten.
§ 95 Kosten bei Säumnis oder Verschulden
Die Partei, die einen Termin oder eine Frist versäumt oder die Verlegung eines Termins, die Vertagung einer Verhandlung, die Anberaumung eines Termins zur Fortsetzung der Verhandlung oder die Verlängerung einer Frist durch ihr Verschulden veranlasst, hat die dadurch verursachten Kosten zu tragen.
§ 96 Kosten erfolgloser Angriffs- oder Verteidigungsmittel
Die Kosten eines ohne Erfolg gebliebenen Angriffs- oder Verteidigungsmittels können der Partei auferlegt werden, die es geltend gemacht hat, auch wenn sie in der Hauptsache obsiegt.
§ 97 Rechtsmittelkosten
(1) Die Kosten eines ohne Erfolg eingelegten Rechtsmittels fallen der Partei zur Last, die es eingelegt hat.
(2) Die Kosten des Rechtsmittelverfahrens sind der obsiegenden Partei ganz oder teilweise aufzuerlegen, wenn sie auf Grund eines neuen Vorbringens obsiegt, das sie in einem früheren Rechtszug geltend zu machen imstande war.
(3) (weggefallen)
§ 98 Vergleichskosten
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Die Kosten eines abgeschlossenen Vergleichs sind als gegeneinander aufgehoben anzusehen, wenn nicht die Parteien ein anderes vereinbart haben. Das Gleiche gilt von den Kosten des durch Vergleich erledigten Rechtsstreits, soweit nicht über sie bereits rechtskräftig erkannt ist.
§ 99 Anfechtung von Kostenentscheidungen
(1) Die Anfechtung der Kostenentscheidung ist unzulässig, wenn nicht gegen die Entscheidung in der Hauptsache ein Rechtsmittel eingelegt wird.
(2) Ist die Hauptsache durch eine auf Grund eines Anerkenntnisses ausgesprochene Verurteilung erledigt, so findet gegen die Kostenentscheidung die sofortige Beschwerde statt. Dies gilt nicht, wenn der Streitwert der Hauptsache den in § 511 genannten Betrag nicht übersteigt. Vor der Entscheidung über die Beschwerde ist der Gegner zu hören.
§ 100 Kosten bei Streitgenossen
(1) Besteht der unterliegende Teil aus mehreren Personen, so haften sie für die Kostenerstattung nach Kopfteilen.
(2) Bei einer erheblichen Verschiedenheit der Beteiligung am Rechtsstreit kann nach dem Ermessen des Gerichts die Beteiligung zum Maßstab genommen werden.
(3) Hat ein Streitgenosse ein besonderes Angriffs- oder Verteidigungsmittel geltend gemacht, so haften die übrigen Streitgenossen nicht für die dadurch veranlassten Kosten.
(4) Werden mehrere Beklagte als Gesamtschuldner verurteilt, so haften sie auch für die Kostenerstattung, unbeschadet der Vorschrift des Absatzes 3, als Gesamtschuldner. Die Vorschriften des bürgerlichen Rechts, nach denen sich diese Haftung auf die im Absatz 3 bezeichneten Kosten erstreckt, bleiben unberührt.
§ 101 Kosten einer Nebenintervention
(1) Die durch eine Nebenintervention verursachten Kosten sind dem Gegner der Hauptpartei aufzuerlegen, soweit er nach den Vorschriften der §§ 91 bis 98 die Kosten des Rechtsstreits zu tragen hat; soweit dies nicht der Fall ist, sind sie dem Nebenintervenienten aufzuerlegen.
(2) Gilt der Nebenintervenient als Streitgenosse der Hauptpartei (§ 69), so sind die Vorschriften des § 100 maßgebend.
§ 102
(weggefallen)
§ 103 Kostenfestsetzungsgrundlage; Kostenfestsetzungsantrag
(1) Der Anspruch auf Erstattung der Prozesskosten kann nur auf Grund eines zur Zwangsvollstreckung geeigneten Titels geltend gemacht werden.
(2) Der Antrag auf Festsetzung des zu erstattenden Betrages ist bei dem Gericht des ersten Rechtszuges anzubringen. Die Kostenberechnung, ihre zur Mitteilung an den Gegner bestimmte Abschrift und die zur Rechtfertigung der einzelnen Ansätze dienenden Belege sind beizufügen.
§ 104 Kostenfestsetzungsverfahren
(1) Über den Festsetzungsantrag entscheidet das Gericht des ersten Rechtszuges. Auf Antrag ist auszusprechen, dass die festgesetzten Kosten vom Eingang des Festsetzungsantrags, im Falle des § 105 Abs. 3 von der Verkündung des Urteils ab mit fünf Prozentpunkten über dem Basiszinssatz nach § 247 des Bürgerlichen Gesetzbuchs zu verzinsen sind. Die Entscheidung ist, sofern dem Antrag ganz oder teilweise entsprochen wird, dem Gegner des Antragstellers unter Beifügung einer Abschrift der Kostenrechnung von Amts wegen zuzustellen. Dem Antragsteller ist die Entscheidung nur dann von Amts wegen zuzustellen, wenn der Antrag ganz oder teilweise zurückgewiesen wird; im Übrigen ergeht die Mitteilung formlos.
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(2) Zur Berücksichtigung eines Ansatzes genügt, dass er glaubhaft gemacht ist. Hinsichtlich der einem Rechtsanwalt erwachsenden Auslagen für Post- und Telekommunikationsdienstleistungen genügt die Versicherung des Rechtsanwalts, dass diese Auslagen entstanden sind. Zur Berücksichtigung von Umsatzsteuerbeträgen genügt die Erklärung des Antragstellers, dass er die Beträge nicht als Vorsteuer abziehen kann.
(3) Gegen die Entscheidung findet sofortige Beschwerde statt. Das Beschwerdegericht kann das Verfahren aussetzen, bis die Entscheidung, auf die der Festsetzungsantrag gestützt wird, rechtskräftig ist.
§ 105 Vereinfachter Kostenfestsetzungsbeschluss
(1) Der Festsetzungsbeschluss kann auf das Urteil und die Ausfertigungen gesetzt werden, sofern bei Eingang des Antrags eine Ausfertigung des Urteils noch nicht erteilt ist und eine Verzögerung der Ausfertigung nicht eintritt. Erfolgt der Festsetzungsbeschluss in der Form des § 130b, ist er in einem gesonderten elektronischen Dokument festzuhalten. Das Dokument ist mit dem Urteil untrennbar zu verbinden.
(2) Eine besondere Ausfertigung und Zustellung des Festsetzungsbeschlusses findet in den Fällen des Absatzes 1 nicht statt. Den Parteien ist der festgesetzte Betrag mitzuteilen, dem Gegner des Antragstellers unter Beifügung der Abschrift der Kostenberechnung. Die Verbindung des Festsetzungsbeschlusses mit dem Urteil soll unterbleiben, sofern dem Festsetzungsantrag auch nur teilweise nicht entsprochen wird.
(3) Eines Festsetzungsantrags bedarf es nicht, wenn die Partei vor der Verkündung des Urteils die Berechnung ihrer Kosten eingereicht hat; in diesem Fall ist die dem Gegner mitzuteilende Abschrift der Kostenberechnung von Amts wegen anzufertigen.
§ 106 Verteilung nach Quoten
(1) Sind die Prozesskosten ganz oder teilweise nach Quoten verteilt, so hat nach Eingang des Festsetzungsantrags das Gericht den Gegner aufzufordern, die Berechnung seiner Kosten binnen einer Woche bei Gericht einzureichen. Die Vorschriften des § 105 sind nicht anzuwenden.
(2) Nach fruchtlosem Ablauf der einwöchigen Frist ergeht die Entscheidung ohne Rücksicht auf die Kosten des Gegners, unbeschadet des Rechts des letzteren, den Anspruch auf Erstattung nachträglich geltend zu machen. Der Gegner haftet für die Mehrkosten, die durch das nachträgliche Verfahren entstehen.
§ 107 Änderung nach Streitwertfestsetzung
(1) Ergeht nach der Kostenfestsetzung eine Entscheidung, durch die der Wert des Streitgegenstandes festgesetzt wird, so ist, falls diese Entscheidung von der Wertberechnung abweicht, die der Kostenfestsetzung zugrunde liegt, auf Antrag die Kostenfestsetzung entsprechend abzuändern. Über den Antrag entscheidet das Gericht des ersten Rechtszuges.
(2) Der Antrag ist binnen der Frist von einem Monat bei der Geschäftsstelle anzubringen. Die Frist beginnt mit der Zustellung und, wenn es einer solchen nicht bedarf, mit der Verkündung des den Wert des Streitgegenstandes festsetzenden Beschlusses.
(3) Die Vorschriften des § 104 Abs. 3 sind anzuwenden.
Titel 6 Sicherheitsleistung § 108 Art und Höhe der Sicherheit
(1) In den Fällen der Bestellung einer prozessualen Sicherheit kann das Gericht nach freiem Ermessen bestimmen, in welcher Art und Höhe die Sicherheit zu leisten ist. Soweit das Gericht eine Bestimmung nicht getroffen hat und die Parteien ein anderes nicht vereinbart haben, ist die Sicherheitsleistung durch die schriftliche, unwiderrufliche, unbedingte und unbefristete Bürgschaft eines im Inland zum Geschäftsbetrieb befugten Kreditinstituts oder durch Hinterlegung von Geld oder solchen Wertpapieren zu bewirken, die nach § 234 Abs. 1 und 3 des Bürgerlichen Gesetzbuchs zur Sicherheitsleistung geeignet sind.
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(2) Die Vorschriften des § 234 Abs. 2 und des § 235 des Bürgerlichen Gesetzbuchs sind entsprechend anzuwenden.
§ 109 Rückgabe der Sicherheit
(1) Ist die Veranlassung für eine Sicherheitsleistung weggefallen, so hat auf Antrag das Gericht, das die Bestellung der Sicherheit angeordnet oder zugelassen hat, eine Frist zu bestimmen, binnen der ihm die Partei, zu deren Gunsten die Sicherheit geleistet ist, die Einwilligung in die Rückgabe der Sicherheit zu erklären oder die Erhebung der Klage wegen ihrer Ansprüche nachzuweisen hat.
(2) Nach Ablauf der Frist hat das Gericht auf Antrag die Rückgabe der Sicherheit anzuordnen, wenn nicht inzwischen die Erhebung der Klage nachgewiesen ist; ist die Sicherheit durch eine Bürgschaft bewirkt worden, so ordnet das Gericht das Erlöschen der Bürgschaft an. Die Anordnung wird erst mit der Rechtskraft wirksam.
(3) Die Anträge und die Einwilligung in die Rückgabe der Sicherheit können vor der Geschäftsstelle zu Protokoll erklärt werden. Die Entscheidungen ergehen durch Beschluss.
(4) Gegen den Beschluss, durch den der im Absatz 1 vorgesehene Antrag abgelehnt wird, steht dem Antragsteller, gegen die im Absatz 2 bezeichnete Entscheidung steht beiden Teilen die sofortige Beschwerde zu.
§ 110 Prozesskostensicherheit
(1) Kläger, die ihren gewöhnlichen Aufenthalt nicht in einem Mitgliedstaat der Europäischen Union oder einem Vertragsstaat des Abkommens über den Europäischen Wirtschaftsraum haben, leisten auf Verlangen des Beklagten wegen der Prozesskosten Sicherheit.
(2) Diese Verpflichtung tritt nicht ein: 1. wenn auf Grund völkerrechtlicher Verträge keine Sicherheit verlangt werden kann; 2. wenn die Entscheidung über die Erstattung der Prozesskosten an den Beklagten auf Grund völkerrechtlicher
Verträge vollstreckt würde; 3. wenn der Kläger im Inland ein zur Deckung der Prozesskosten hinreichendes Grundvermögen oder dinglich
gesicherte Forderungen besitzt; 4. bei Widerklagen; 5. bei Klagen, die auf Grund einer öffentlichen Aufforderung erhoben werden.
§ 111 Nachträgliche Prozesskostensicherheit
Der Beklagte kann auch dann Sicherheit verlangen, wenn die Voraussetzungen für die Verpflichtung zur Sicherheitsleistung erst im Laufe des Rechtsstreits eintreten und nicht ein zur Deckung ausreichender Teil des erhobenen Anspruchs unbestritten ist.
§ 112 Höhe der Prozesskostensicherheit
(1) Die Höhe der zu leistenden Sicherheit wird von dem Gericht nach freiem Ermessen festgesetzt.
(2) Bei der Festsetzung ist derjenige Betrag der Prozesskosten zugrunde zu legen, den der Beklagte wahrscheinlich aufzuwenden haben wird. Die dem Beklagten durch eine Widerklage erwachsenden Kosten sind hierbei nicht zu berücksichtigen.
(3) Ergibt sich im Laufe des Rechtsstreits, dass die geleistete Sicherheit nicht hinreicht, so kann der Beklagte die Leistung einer weiteren Sicherheit verlangen, sofern nicht ein zur Deckung ausreichender Teil des erhobenen Anspruchs unbestritten ist.
§ 113 Fristbestimmung für Prozesskostensicherheit
Das Gericht hat dem Kläger bei Anordnung der Sicherheitsleistung eine Frist zu bestimmen, binnen der die Sicherheit zu leisten ist. Nach Ablauf der Frist ist auf Antrag des Beklagten, wenn die Sicherheit bis zur Entscheidung nicht geleistet ist, die Klage für zurückgenommen zu erklären oder, wenn über ein Rechtsmittel des Klägers zu verhandeln ist, dieses zu verwerfen.
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Titel 7 Prozesskostenhilfe und Prozesskostenvorschuss § 114 Voraussetzungen
(1) Eine Partei, die nach ihren persönlichen und wirtschaftlichen Verhältnissen die Kosten der Prozessführung nicht, nur zum Teil oder nur in Raten aufbringen kann, erhält auf Antrag Prozesskostenhilfe, wenn die beabsichtigte Rechtsverfolgung oder Rechtsverteidigung hinreichende Aussicht auf Erfolg bietet und nicht mutwillig erscheint. Für die grenzüberschreitende Prozesskostenhilfe innerhalb der Europäischen Union gelten ergänzend die §§ 1076 bis 1078.
(2) Mutwillig ist die Rechtsverfolgung oder Rechtsverteidigung, wenn eine Partei, die keine Prozesskostenhilfe beansprucht, bei verständiger Würdigung aller Umstände von der Rechtsverfolgung oder Rechtsverteidigung absehen würde, obwohl eine hinreichende Aussicht auf Erfolg besteht.
§ 115 Einsatz von Einkommen und Vermögen
(1) Die Partei hat ihr Einkommen einzusetzen. Zum Einkommen gehören alle Einkünfte in Geld oder Geldeswert. Von ihm sind abzusetzen: 1. a) die in § 82 Abs. 2 des Zwölften Buches Sozialgesetzbuch bezeichneten Beträge;
b) bei Parteien, die ein Einkommen aus Erwerbstätigkeit erzielen, ein Betrag in Höhe von 50 vom Hundert des höchsten Regelsatzes, der für den alleinstehenden oder alleinerziehenden Leistungsberechtigten gemäß der Regelbedarfsstufe 1 nach der Anlage zu § 28 des Zwölften Buches Sozialgesetzbuch festgesetzt oder fortgeschrieben worden ist;
2. a) für die Partei und ihren Ehegatten oder ihren Lebenspartner jeweils ein Betrag in Höhe des um 10 vom Hundert erhöhten höchsten Regelsatzes, der für den alleinstehenden oder alleinerziehenden Leistungsberechtigten gemäß der Regelbedarfsstufe 1 nach der Anlage zu § 28 des Zwölften Buches Sozialgesetzbuch festgesetzt oder fortgeschrieben worden ist;
b) bei weiteren Unterhaltsleistungen auf Grund gesetzlicher Unterhaltspflicht für jede unterhaltsberechtigte Person jeweils ein Betrag in Höhe des um 10 vom Hundert erhöhten höchsten Regelsatzes, der für eine Person ihres Alters gemäß den Regelbedarfsstufen 3 bis 6 nach der Anlage zu § 28 des Zwölften Buches Sozialgesetzbuch festgesetzt oder fortgeschrieben worden ist;
3. die Kosten der Unterkunft und Heizung, soweit sie nicht in einem auffälligen Missverhältnis zu den Lebensverhältnissen der Partei stehen;
4. Mehrbedarfe nach § 21 des Zweiten Buches Sozialgesetzbuch und nach § 30 des Zwölften Buches Sozialgesetzbuch;
5. weitere Beträge, soweit dies mit Rücksicht auf besondere Belastungen angemessen ist; § 1610a des Bürgerlichen Gesetzbuchs gilt entsprechend.
Maßgeblich sind die Beträge, die zum Zeitpunkt der Bewilligung der Prozesskostenhilfe gelten. Das Bundesministerium der Justiz gibt bei jeder Neufestsetzung oder jeder Fortschreibung die maßgebenden Beträge nach Satz 3 Nummer 1 Buchstabe b und Nummer 2 im Bundesgesetzblatt bekannt. Diese Beträge sind, soweit sie nicht volle Euro ergeben, bis zu 0,49 Euro abzurunden und von 0,50 Euro an aufzurunden. Die Unterhaltsfreibeträge nach Satz 3 Nr. 2 vermindern sich um eigenes Einkommen der unterhaltsberechtigten Person. Wird eine Geldrente gezahlt, so ist sie an Stelle des Freibetrages abzusetzen, soweit dies angemessen ist.
(2) Von dem nach den Abzügen verbleibenden Teil des monatlichen Einkommens (einzusetzendes Einkommen) sind Monatsraten in Höhe der Hälfte des einzusetzenden Einkommens festzusetzen; die Monatsraten sind auf volle Euro abzurunden. Beträgt die Höhe einer Monatsrate weniger als 10 Euro, ist von der Festsetzung von Monatsraten abzusehen. Bei einem einzusetzenden Einkommen von mehr als 600 Euro beträgt die Monatsrate 300 Euro zuzüglich des Teils des einzusetzenden Einkommens, der 600 Euro übersteigt. Unabhängig von der Zahl der Rechtszüge sind höchstens 48 Monatsraten aufzubringen.
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(3) Die Partei hat ihr Vermögen einzusetzen, soweit dies zumutbar ist. § 90 des Zwölften Buches Sozialgesetzbuch gilt entsprechend.
(4) Prozesskostenhilfe wird nicht bewilligt, wenn die Kosten der Prozessführung der Partei vier Monatsraten und die aus dem Vermögen aufzubringenden Teilbeträge voraussichtlich nicht übersteigen.
Fußnote
(+++ Hinweis: Zur Höhe der nach § 115 Abs. 1 Satz 3 Nr. 1 Buchst. b und Nr. 2 maßgebenden Beträge ab dem 1.1.2014 vgl. Bek. v. 6.12.2013 I 4088 (PKHB 2014) +++)
§ 116 Partei kraft Amtes; juristische Person; parteifähige Vereinigung
Prozesskostenhilfe erhalten auf Antrag 1. eine Partei kraft Amtes, wenn die Kosten aus der verwalteten Vermögensmasse nicht aufgebracht werden
können und den am Gegenstand des Rechtsstreits wirtschaftlich Beteiligten nicht zuzumuten ist, die Kosten aufzubringen;
2. eine juristische Person oder parteifähige Vereinigung, die im Inland, in einem anderen Mitgliedstaat der Europäischen Union oder einem anderen Vertragsstaat des Abkommens über den Europäischen Wirtschaftsraum gegründet und dort ansässig ist, wenn die Kosten weder von ihr noch von den am Gegenstand des Rechtsstreits wirtschaftlich Beteiligten aufgebracht werden können und wenn die Unterlassung der Rechtsverfolgung oder Rechtsverteidigung allgemeinen Interessen zuwiderlaufen würde.
§ 114 Absatz 1 Satz 1 letzter Halbsatz und Absatz 2 ist anzuwenden. Können die Kosten nur zum Teil oder nur in Teilbeträgen aufgebracht werden, so sind die entsprechenden Beträge zu zahlen.
§ 117 Antrag
(1) Der Antrag auf Bewilligung der Prozesskostenhilfe ist bei dem Prozessgericht zu stellen; er kann vor der Geschäftsstelle zu Protokoll erklärt werden. In dem Antrag ist das Streitverhältnis unter Angabe der Beweismittel darzustellen. Der Antrag auf Bewilligung von Prozesskostenhilfe für die Zwangsvollstreckung ist bei dem für die Zwangsvollstreckung zuständigen Gericht zu stellen.
(2) Dem Antrag sind eine Erklärung der Partei über ihre persönlichen und wirtschaftlichen Verhältnisse (Familienverhältnisse, Beruf, Vermögen, Einkommen und Lasten) sowie entsprechende Belege beizufügen. Die Erklärung und die Belege dürfen dem Gegner nur mit Zustimmung der Partei zugänglich gemacht werden; es sei denn, der Gegner hat gegen den Antragsteller nach den Vorschriften des bürgerlichen Rechts einen Anspruch auf Auskunft über Einkünfte und Vermögen des Antragstellers. Dem Antragsteller ist vor der Übermittlung seiner Erklärung an den Gegner Gelegenheit zur Stellungnahme zu geben. Er ist über die Übermittlung seiner Erklärung zu unterrichten.
(3) Das Bundesministerium der Justiz wird ermächtigt, zur Vereinfachung und Vereinheitlichung des Verfahrens durch Rechtsverordnung mit Zustimmung des Bundesrates Formulare für die Erklärung einzuführen. Die Formulare enthalten die nach § 120a Absatz 2 Satz 4 erforderliche Belehrung.
(4) Soweit Formulare für die Erklärung eingeführt sind, muss sich die Partei ihrer bedienen.
§ 118 Bewilligungsverfahren
(1) Dem Gegner ist Gelegenheit zur Stellungnahme zu geben, ob er die Voraussetzungen für die Bewilligung von Prozesskostenhilfe für gegeben hält, soweit dies aus besonderen Gründen nicht unzweckmäßig erscheint. Die Stellungnahme kann vor der Geschäftsstelle zu Protokoll erklärt werden. Das Gericht kann die Parteien zur mündlichen Erörterung laden, wenn eine Einigung zu erwarten ist; ein Vergleich ist zu gerichtlichem Protokoll zu nehmen. Dem Gegner entstandene Kosten werden nicht erstattet. Die durch die Vernehmung von Zeugen und Sachverständigen nach Absatz 2 Satz 3 entstandenen Auslagen sind als Gerichtskosten von der Partei zu tragen, der die Kosten des Rechtsstreits auferlegt sind.
(2) Das Gericht kann verlangen, dass der Antragsteller seine tatsächlichen Angaben glaubhaft macht, es kann insbesondere auch die Abgabe einer Versicherung an Eides statt fordern. Es kann Erhebungen anstellen, insbesondere die Vorlegung von Urkunden anordnen und Auskünfte einholen. Zeugen und Sachverständige werden nicht vernommen, es sei denn, dass auf andere Weise nicht geklärt werden kann, ob die
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Rechtsverfolgung oder Rechtsverteidigung hinreichende Aussicht auf Erfolg bietet und nicht mutwillig erscheint; eine Beeidigung findet nicht statt. Hat der Antragsteller innerhalb einer von dem Gericht gesetzten Frist Angaben über seine persönlichen und wirtschaftlichen Verhältnisse nicht glaubhaft gemacht oder bestimmte Fragen nicht oder ungenügend beantwortet, so lehnt das Gericht die Bewilligung von Prozesskostenhilfe insoweit ab.
(3) Die in Absatz 1, 2 bezeichneten Maßnahmen werden von dem Vorsitzenden oder einem von ihm beauftragten Mitglied des Gerichts durchgeführt.
§ 119 Bewilligung
(1) Die Bewilligung der Prozesskostenhilfe erfolgt für jeden Rechtszug besonders. In einem höheren Rechtszug ist nicht zu prüfen, ob die Rechtsverfolgung oder Rechtsverteidigung hinreichende Aussicht auf Erfolg bietet oder mutwillig erscheint, wenn der Gegner das Rechtsmittel eingelegt hat.
(2) Die Bewilligung von Prozesskostenhilfe für die Zwangsvollstreckung in das bewegliche Vermögen umfasst alle Vollstreckungshandlungen im Bezirk des Vollstreckungsgerichts einschließlich des Verfahrens auf Abgabe der eidesstattlichen Versicherung.
§ 120 Festsetzung von Zahlungen
(1) Mit der Bewilligung der Prozesskostenhilfe setzt das Gericht zu zahlende Monatsraten und aus dem Vermögen zu zahlende Beträge fest. Setzt das Gericht nach § 115 Absatz 1 Satz 3 Nummer 5 mit Rücksicht auf besondere Belastungen von dem Einkommen Beträge ab und ist anzunehmen, dass die Belastungen bis zum Ablauf von vier Jahren ganz oder teilweise entfallen werden, so setzt das Gericht zugleich diejenigen Zahlungen fest, die sich ergeben, wenn die Belastungen nicht oder nur in verringertem Umfang berücksichtigt werden, und bestimmt den Zeitpunkt, von dem an sie zu erbringen sind.
(2) Die Zahlungen sind an die Landeskasse zu leisten, im Verfahren vor dem Bundesgerichtshof an die Bundeskasse, wenn Prozesskostenhilfe in einem vorherigen Rechtszug nicht bewilligt worden ist.
(3) Das Gericht soll die vorläufige Einstellung der Zahlungen bestimmen, 1. wenn die Zahlungen der Partei die voraussichtlich entstehenden Kosten decken; 2. wenn die Partei, ein ihr beigeordneter Rechtsanwalt oder die Bundes- oder Landeskasse die Kosten gegen
einen anderen am Verfahren Beteiligten geltend machen kann.
(4) (weggefallen)
§ 120a Änderung der Bewilligung
(1) Das Gericht soll die Entscheidung über die zu leistenden Zahlungen ändern, wenn sich die für die Prozesskostenhilfe maßgebenden persönlichen oder wirtschaftlichen Verhältnisse wesentlich verändert haben. Eine Änderung der nach § 115 Absatz 1 Satz 3 Nummer 1 Buchstabe b und Nummer 2 maßgebenden Beträge ist nur auf Antrag und nur dann zu berücksichtigen, wenn sie dazu führt, dass keine Monatsrate zu zahlen ist. Auf Verlangen des Gerichts muss die Partei jederzeit erklären, ob eine Veränderung der Verhältnisse eingetreten ist. Eine Änderung zum Nachteil der Partei ist ausgeschlossen, wenn seit der rechtskräftigen Entscheidung oder der sonstigen Beendigung des Verfahrens vier Jahre vergangen sind.
(2) Verbessern sich vor dem in Absatz 1 Satz 4 genannten Zeitpunkt die wirtschaftlichen Verhältnisse der Partei wesentlich oder ändert sich ihre Anschrift, hat sie dies dem Gericht unverzüglich mitzuteilen. Bezieht die Partei ein laufendes monatliches Einkommen, ist eine Einkommensverbesserung nur wesentlich, wenn die Differenz zu dem bisher zu Grunde gelegten Bruttoeinkommen nicht nur einmalig 100 Euro übersteigt. Satz 2 gilt entsprechend, soweit abzugsfähige Belastungen entfallen. Hierüber und über die Folgen eines Verstoßes ist die Partei bei der Antragstellung in dem gemäß § 117 Absatz 3 eingeführten Formular zu belehren.
(3) Eine wesentliche Verbesserung der wirtschaftlichen Verhältnisse kann insbesondere dadurch eintreten, dass die Partei durch die Rechtsverfolgung oder Rechtsverteidigung etwas erlangt. Das Gericht soll nach der rechtskräftigen Entscheidung oder der sonstigen Beendigung des Verfahrens prüfen, ob eine Änderung der Entscheidung über die zu leistenden Zahlungen mit Rücksicht auf das durch die Rechtsverfolgung oder Rechtsverteidigung Erlangte geboten ist. Eine Änderung der Entscheidung ist ausgeschlossen, soweit die Partei bei rechtzeitiger Leistung des durch die Rechtsverfolgung oder Rechtsverteidigung Erlangten ratenfreie Prozesskostenhilfe erhalten hätte.
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(4) Für die Erklärung über die Änderung der persönlichen oder wirtschaftlichen Verhältnisse nach Absatz 1 Satz 3 muss die Partei das gemäß § 117 Absatz 3 eingeführte Formular benutzen. Für die Überprüfung der persönlichen und wirtschaftlichen Verhältnisse gilt § 118 Absatz 2 entsprechend.
§ 121 Beiordnung eines Rechtsanwalts
(1) Ist eine Vertretung durch Anwälte vorgeschrieben, wird der Partei ein zur Vertretung bereiter Rechtsanwalt ihrer Wahl beigeordnet.
(2) Ist eine Vertretung durch Anwälte nicht vorgeschrieben, wird der Partei auf ihren Antrag ein zur Vertretung bereiter Rechtsanwalt ihrer Wahl beigeordnet, wenn die Vertretung durch einen Rechtsanwalt erforderlich erscheint oder der Gegner durch einen Rechtsanwalt vertreten ist.
(3) Ein nicht in dem Bezirk des Prozessgerichts niedergelassener Rechtsanwalt kann nur beigeordnet werden, wenn dadurch weitere Kosten nicht entstehen.
(4) Wenn besondere Umstände dies erfordern, kann der Partei auf ihren Antrag ein zur Vertretung bereiter Rechtsanwalt ihrer Wahl zur Wahrnehmung eines Termins zur Beweisaufnahme vor dem ersuchten Richter oder zur Vermittlung des Verkehrs mit dem Prozessbevollmächtigten beigeordnet werden.
(5) Findet die Partei keinen zur Vertretung bereiten Anwalt, ordnet der Vorsitzende ihr auf Antrag einen Rechtsanwalt bei.
§ 122 Wirkung der Prozesskostenhilfe
(1) Die Bewilligung der Prozesskostenhilfe bewirkt, dass 1. die Bundes- oder Landeskasse
a) die rückständigen und die entstehenden Gerichtskosten und Gerichtsvollzieherkosten, b) die auf sie übergegangenen Ansprüche der beigeordneten Rechtsanwälte gegen die Partei nur nach den Bestimmungen, die das Gericht trifft, gegen die Partei geltend machen kann,
2. die Partei von der Verpflichtung zur Sicherheitsleistung für die Prozesskosten befreit ist, 3. die beigeordneten Rechtsanwälte Ansprüche auf Vergütung gegen die Partei nicht geltend machen können.
(2) Ist dem Kläger, dem Berufungskläger oder dem Revisionskläger Prozesskostenhilfe bewilligt und ist nicht bestimmt worden, dass Zahlungen an die Bundes- oder Landeskasse zu leisten sind, so hat dies für den Gegner die einstweilige Befreiung von den in Absatz 1 Nr. 1 Buchstabe a bezeichneten Kosten zur Folge.
§ 123 Kostenerstattung
Die Bewilligung der Prozesskostenhilfe hat auf die Verpflichtung, die dem Gegner entstandenen Kosten zu erstatten, keinen Einfluss.
§ 124 Aufhebung der Bewilligung
(1) Das Gericht soll die Bewilligung der Prozesskostenhilfe aufheben, wenn 1. die Partei durch unrichtige Darstellung des Streitverhältnisses die für die Bewilligung der Prozesskostenhilfe
maßgebenden Voraussetzungen vorgetäuscht hat; 2. die Partei absichtlich oder aus grober Nachlässigkeit unrichtige Angaben über die persönlichen oder
wirtschaftlichen Verhältnisse gemacht oder eine Erklärung nach § 120a Absatz 1 Satz 3 nicht oder ungenügend abgegeben hat;
3. die persönlichen oder wirtschaftlichen Voraussetzungen für die Prozesskostenhilfe nicht vorgelegen haben; in diesem Fall ist die Aufhebung ausgeschlossen, wenn seit der rechtskräftigen Entscheidung oder sonstigen Beendigung des Verfahrens vier Jahre vergangen sind;
4. die Partei entgegen § 120a Absatz 2 Satz 1 bis 3 dem Gericht wesentliche Verbesserungen ihrer Einkommens- und Vermögensverhältnisse oder Änderungen ihrer Anschrift absichtlich oder aus grober Nachlässigkeit unrichtig oder nicht unverzüglich mitgeteilt hat;
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5. die Partei länger als drei Monate mit der Zahlung einer Monatsrate oder mit der Zahlung eines sonstigen Betrages im Rückstand ist.
(2) Das Gericht kann die Bewilligung der Prozesskostenhilfe aufheben, soweit die von der Partei beantragte Beweiserhebung auf Grund von Umständen, die im Zeitpunkt der Bewilligung der Prozesskostenhilfe noch nicht berücksichtigt werden konnten, keine hinreichende Aussicht auf Erfolg bietet oder der Beweisantritt mutwillig erscheint.
§ 125 Einziehung der Kosten
(1) Die Gerichtskosten und die Gerichtsvollzieherkosten können von dem Gegner erst eingezogen werden, wenn er rechtskräftig in die Prozesskosten verurteilt ist.
(2) Die Gerichtskosten, von deren Zahlung der Gegner einstweilen befreit ist, sind von ihm einzuziehen, soweit er rechtskräftig in die Prozesskosten verurteilt oder der Rechtsstreit ohne Urteil über die Kosten beendet ist.
§ 126 Beitreibung der Rechtsanwaltskosten
(1) Die für die Partei bestellten Rechtsanwälte sind berechtigt, ihre Gebühren und Auslagen von dem in die Prozesskosten verurteilten Gegner im eigenen Namen beizutreiben.
(2) Eine Einrede aus der Person der Partei ist nicht zulässig. Der Gegner kann mit Kosten aufrechnen, die nach der in demselben Rechtsstreit über die Kosten erlassenen Entscheidung von der Partei zu erstatten sind.
§ 127 Entscheidungen
(1) Entscheidungen im Verfahren über die Prozesskostenhilfe ergehen ohne mündliche Verhandlung. Zuständig ist das Gericht des ersten Rechtszuges; ist das Verfahren in einem höheren Rechtszug anhängig, so ist das Gericht dieses Rechtszuges zuständig. Soweit die Gründe der Entscheidung Angaben über die persönlichen und wirtschaftlichen Verhältnisse der Partei enthalten, dürfen sie dem Gegner nur mit Zustimmung der Partei zugänglich gemacht werden.
(2) Die Bewilligung der Prozesskostenhilfe kann nur nach Maßgabe des Absatzes 3 angefochten werden. Im Übrigen findet die sofortige Beschwerde statt; dies gilt nicht, wenn der Streitwert der Hauptsache den in § 511 genannten Betrag nicht übersteigt, es sei denn, das Gericht hat ausschließlich die persönlichen oder wirtschaftlichen Voraussetzungen für die Prozesskostenhilfe verneint. Die Notfrist beträgt einen Monat.
(3) Gegen die Bewilligung der Prozesskostenhilfe findet die sofortige Beschwerde der Staatskasse statt, wenn weder Monatsraten noch aus dem Vermögen zu zahlende Beträge festgesetzt worden sind. Die Beschwerde kann nur darauf gestützt werden, dass die Partei nach ihren persönlichen und wirtschaftlichen Verhältnissen Zahlungen zu leisten hat. Die Notfrist beträgt einen Monat und beginnt mit der Bekanntgabe des Beschlusses. Nach Ablauf von drei Monaten seit der Verkündung der Entscheidung ist die Beschwerde unstatthaft. Wird die Entscheidung nicht verkündet, so tritt an die Stelle der Verkündung der Zeitpunkt, in dem die unterschriebene Entscheidung der Geschäftsstelle übermittelt wird. Die Entscheidung wird der Staatskasse nicht von Amts wegen mitgeteilt.
(4) Die Kosten des Beschwerdeverfahrens werden nicht erstattet.
§ 127a (weggefallen)
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Abschnitt 3 Verfahren
Titel 1 Mündliche Verhandlung § 128 Grundsatz der Mündlichkeit; schriftliches Verfahren
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(1) Die Parteien verhandeln über den Rechtsstreit vor dem erkennenden Gericht mündlich.
(2) Mit Zustimmung der Parteien, die nur bei einer wesentlichen Änderung der Prozesslage widerruflich ist, kann das Gericht eine Entscheidung ohne mündliche Verhandlung treffen. Es bestimmt alsbald den Zeitpunkt, bis zu dem Schriftsätze eingereicht werden können, und den Termin zur Verkündung der Entscheidung. Eine Entscheidung ohne mündliche Verhandlung ist unzulässig, wenn seit der Zustimmung der Parteien mehr als drei Monate verstrichen sind.
(3) Ist nur noch über die Kosten zu entscheiden, kann die Entscheidung ohne mündliche Verhandlung ergehen.
(4) Entscheidungen des Gerichts, die nicht Urteile sind, können ohne mündliche Verhandlung ergehen, soweit nichts anderes bestimmt ist.
§ 128a Verhandlung im Wege der Bild- und Tonübertragung
(1) Das Gericht kann den Parteien, ihren Bevollmächtigten und Beiständen auf Antrag oder von Amts wegen gestatten, sich während einer mündlichen Verhandlung an einem anderen Ort aufzuhalten und dort Verfahrenshandlungen vorzunehmen. Die Verhandlung wird zeitgleich in Bild und Ton an diesen Ort und in das Sitzungszimmer übertragen.
(2) Das Gericht kann auf Antrag gestatten, dass sich ein Zeuge, ein Sachverständiger oder eine Partei während einer Vernehmung an einem anderen Ort aufhält. Die Vernehmung wird zeitgleich in Bild und Ton an diesen Ort und in das Sitzungszimmer übertragen. Ist Parteien, Bevollmächtigten und Beiständen nach Absatz 1 Satz 1 gestattet worden, sich an einem anderen Ort aufzuhalten, so wird die Vernehmung auch an diesen Ort übertragen.
(3) Die Übertragung wird nicht aufgezeichnet. Entscheidungen nach Absatz 1 Satz 1 und Absatz 2 Satz 1 sind unanfechtbar.
§ 129 Vorbereitende Schriftsätze
(1) In Anwaltsprozessen wird die mündliche Verhandlung durch Schriftsätze vorbereitet.
(2) In anderen Prozessen kann den Parteien durch richterliche Anordnung aufgegeben werden, die mündliche Verhandlung durch Schriftsätze oder zu Protokoll der Geschäftsstelle abzugebende Erklärungen vorzubereiten.
§ 129a Anträge und Erklärungen zu Protokoll
(1) Anträge und Erklärungen, deren Abgabe vor dem Urkundsbeamten der Geschäftsstelle zulässig ist, können vor der Geschäftsstelle eines jeden Amtsgerichts zu Protokoll abgegeben werden.
(2) Die Geschäftsstelle hat das Protokoll unverzüglich an das Gericht zu übermitteln, an das der Antrag oder die Erklärung gerichtet ist. Die Wirkung einer Prozesshandlung tritt frühestens ein, wenn das Protokoll dort eingeht. Die Übermittlung des Protokolls kann demjenigen, der den Antrag oder die Erklärung zu Protokoll abgegeben hat, mit seiner Zustimmung überlassen werden.
§ 130 Inhalt der Schriftsätze
Die vorbereitenden Schriftsätze sollen enthalten: 1. die Bezeichnung der Parteien und ihrer gesetzlichen Vertreter nach Namen, Stand oder Gewerbe, Wohnort
und Parteistellung; die Bezeichnung des Gerichts und des Streitgegenstandes; die Zahl der Anlagen; 2. die Anträge, welche die Partei in der Gerichtssitzung zu stellen beabsichtigt; 3. die Angabe der zur Begründung der Anträge dienenden tatsächlichen Verhältnisse; 4. die Erklärung über die tatsächlichen Behauptungen des Gegners; 5. die Bezeichnung der Beweismittel, deren sich die Partei zum Nachweis oder zur Widerlegung tatsächlicher
Behauptungen bedienen will, sowie die Erklärung über die von dem Gegner bezeichneten Beweismittel; 6. die Unterschrift der Person, die den Schriftsatz verantwortet, bei Übermittlung durch einen Telefaxdienst
(Telekopie) die Wiedergabe der Unterschrift in der Kopie.
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§ 130a Elektronisches Dokument
(1) Soweit für vorbereitende Schriftsätze und deren Anlagen, für Anträge und Erklärungen der Parteien sowie für Auskünfte, Aussagen, Gutachten und Erklärungen Dritter die Schriftform vorgesehen ist, genügt dieser Form die Aufzeichnung als elektronisches Dokument, wenn dieses für die Bearbeitung durch das Gericht geeignet ist. Die verantwortende Person soll das Dokument mit einer qualifizierten elektronischen Signatur nach dem Signaturgesetz versehen. Ist ein übermitteltes elektronisches Dokument für das Gericht zur Bearbeitung nicht geeignet, ist dies dem Absender unter Angabe der geltenden technischen Rahmenbedingungen unverzüglich mitzuteilen.
(2) Die Bundesregierung und die Landesregierungen bestimmen für ihren Bereich durch Rechtsverordnung den Zeitpunkt, von dem an elektronische Dokumente bei den Gerichten eingereicht werden können, sowie die für die Bearbeitung der Dokumente geeignete Form. Die Landesregierungen können die Ermächtigung durch Rechtsverordnung auf die Landesjustizverwaltungen übertragen. Die Zulassung der elektronischen Form kann auf einzelne Gerichte oder Verfahren beschränkt werden.
(3) Ein elektronisches Dokument ist eingereicht, sobald die für den Empfang bestimmte Einrichtung des Gerichts es aufgezeichnet hat.
§ 130b Gerichtliches elektronisches Dokument
Soweit dieses Gesetz dem Richter, dem Rechtspfleger, dem Urkundsbeamten der Geschäftsstelle oder dem Gerichtsvollzieher die handschriftliche Unterzeichnung vorschreibt, genügt dieser Form die Aufzeichnung als elektronisches Dokument, wenn die verantwortenden Personen am Ende des Dokuments ihren Namen hinzufügen und das Dokument mit einer qualifizierten elektronischen Signatur versehen.
§ 131 Beifügung von Urkunden
(1) Dem vorbereitenden Schriftsatz sind die in den Händen der Partei befindlichen Urkunden, auf die in dem Schriftsatz Bezug genommen wird, in Urschrift oder in Abschrift beizufügen.
(2) Kommen nur einzelne Teile einer Urkunde in Betracht, so genügt die Beifügung eines Auszugs, der den Eingang, die zur Sache gehörende Stelle, den Schluss, das Datum und die Unterschrift enthält.
(3) Sind die Urkunden dem Gegner bereits bekannt oder von bedeutendem Umfang, so genügt ihre genaue Bezeichnung mit dem Erbieten, Einsicht zu gewähren.
§ 132 Fristen für Schriftsätze
(1) Der vorbereitende Schriftsatz, der neue Tatsachen oder ein anderes neues Vorbringen enthält, ist so rechtzeitig einzureichen, dass er mindestens eine Woche vor der mündlichen Verhandlung zugestellt werden kann. Das Gleiche gilt für einen Schriftsatz, der einen Zwischenstreit betrifft.
(2) Der vorbereitende Schriftsatz, der eine Gegenerklärung auf neues Vorbringen enthält, ist so rechtzeitig einzureichen, dass er mindestens drei Tage vor der mündlichen Verhandlung zugestellt werden kann. Dies gilt nicht, wenn es sich um eine schriftliche Gegenerklärung in einem Zwischenstreit handelt.
§ 133 Abschriften
(1) Die Parteien sollen den Schriftsätzen, die sie bei dem Gericht einreichen, die für die Zustellung erforderliche Zahl von Abschriften der Schriftsätze und deren Anlagen beifügen. Das gilt nicht für elektronisch übermittelte Dokumente sowie für Anlagen, die dem Gegner in Urschrift oder in Abschrift vorliegen.
(2) Im Falle der Zustellung von Anwalt zu Anwalt (§ 195) haben die Parteien sofort nach der Zustellung eine für das Prozessgericht bestimmte Abschrift ihrer vorbereitenden Schriftsätze und der Anlagen bei dem Gericht einzureichen.
§ 134 Einsicht von Urkunden
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(1) Die Partei ist, wenn sie rechtzeitig aufgefordert wird, verpflichtet, die in ihren Händen befindlichen Urkunden, auf die sie in einem vorbereitenden Schriftsatz Bezug genommen hat, vor der mündlichen Verhandlung auf der Geschäftsstelle niederzulegen und den Gegner von der Niederlegung zu benachrichtigen.
(2) Der Gegner hat zur Einsicht der Urkunden eine Frist von drei Tagen. Die Frist kann auf Antrag von dem Vorsitzenden verlängert oder abgekürzt werden.
§ 135 Mitteilung von Urkunden unter Rechtsanwälten
(1) Den Rechtsanwälten steht es frei, die Mitteilung von Urkunden von Hand zu Hand gegen Empfangsbescheinigung zu bewirken.
(2) Gibt ein Rechtsanwalt die ihm eingehändigte Urkunde nicht binnen der bestimmten Frist zurück, so ist er auf Antrag nach mündlicher Verhandlung zur unverzüglichen Rückgabe zu verurteilen.
(3) Gegen das Zwischenurteil findet sofortige Beschwerde statt.
§ 136 Prozessleitung durch Vorsitzenden
(1) Der Vorsitzende eröffnet und leitet die Verhandlung.
(2) Er erteilt das Wort und kann es demjenigen, der seinen Anordnungen nicht Folge leistet, entziehen. Er hat jedem Mitglied des Gerichts auf Verlangen zu gestatten, Fragen zu stellen.
(3) Er hat Sorge zu tragen, dass die Sache erschöpfend erörtert und die Verhandlung ohne Unterbrechung zu Ende geführt wird; erforderlichenfalls hat er die Sitzung zur Fortsetzung der Verhandlung sofort zu bestimmen.
(4) Er schließt die Verhandlung, wenn nach Ansicht des Gerichts die Sache vollständig erörtert ist, und verkündet die Urteile und Beschlüsse des Gerichts.
§ 137 Gang der mündlichen Verhandlung
(1) Die mündliche Verhandlung wird dadurch eingeleitet, dass die Parteien ihre Anträge stellen.
(2) Die Vorträge der Parteien sind in freier Rede zu halten; sie haben das Streitverhältnis in tatsächlicher und rechtlicher Beziehung zu umfassen.
(3) Eine Bezugnahme auf Dokumente ist zulässig, soweit keine der Parteien widerspricht und das Gericht sie für angemessen hält. Die Vorlesung von Dokumenten findet nur insoweit statt, als es auf ihren wörtlichen Inhalt ankommt.
(4) In Anwaltsprozessen ist neben dem Anwalt auch der Partei selbst auf Antrag das Wort zu gestatten.
§ 138 Erklärungspflicht über Tatsachen; Wahrheitspflicht
(1) Die Parteien haben ihre Erklärungen über tatsächliche Umstände vollständig und der Wahrheit gemäß abzugeben.
(2) Jede Partei hat sich über die von dem Gegner behaupteten Tatsachen zu erklären.
(3) Tatsachen, die nicht ausdrücklich bestritten werden, sind als zugestanden anzusehen, wenn nicht die Absicht, sie bestreiten zu wollen, aus den übrigen Erklärungen der Partei hervorgeht.
(4) Eine Erklärung mit Nichtwissen ist nur über Tatsachen zulässig, die weder eigene Handlungen der Partei noch Gegenstand ihrer eigenen Wahrnehmung gewesen sind.
§ 139 Materielle Prozessleitung
(1) Das Gericht hat das Sach- und Streitverhältnis, soweit erforderlich, mit den Parteien nach der tatsächlichen und rechtlichen Seite zu erörtern und Fragen zu stellen. Es hat dahin zu wirken, dass die Parteien sich rechtzeitig und vollständig über alle erheblichen Tatsachen erklären, insbesondere ungenügende Angaben zu den geltend gemachten Tatsachen ergänzen, die Beweismittel bezeichnen und die sachdienlichen Anträge stellen.
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(2) Auf einen Gesichtspunkt, den eine Partei erkennbar übersehen oder für unerheblich gehalten hat, darf das Gericht, soweit nicht nur eine Nebenforderung betroffen ist, seine Entscheidung nur stützen, wenn es darauf hingewiesen und Gelegenheit zur Äußerung dazu gegeben hat. Dasselbe gilt für einen Gesichtspunkt, den das Gericht anders beurteilt als beide Parteien.
(3) Das Gericht hat auf die Bedenken aufmerksam zu machen, die hinsichtlich der von Amts wegen zu berücksichtigenden Punkte bestehen.
(4) Hinweise nach dieser Vorschrift sind so früh wie möglich zu erteilen und aktenkundig zu machen. Ihre Erteilung kann nur durch den Inhalt der Akten bewiesen werden. Gegen den Inhalt der Akten ist nur der Nachweis der Fälschung zulässig.
(5) Ist einer Partei eine sofortige Erklärung zu einem gerichtlichen Hinweis nicht möglich, so soll auf ihren Antrag das Gericht eine Frist bestimmen, in der sie die Erklärung in einem Schriftsatz nachbringen kann.
§ 140 Beanstandung von Prozessleitung oder Fragen
Wird eine auf die Sachleitung bezügliche Anordnung des Vorsitzenden oder eine von dem Vorsitzenden oder einem Gerichtsmitglied gestellte Frage von einer bei der Verhandlung beteiligten Person als unzulässig beanstandet, so entscheidet das Gericht.
§ 141 Anordnung des persönlichen Erscheinens
(1) Das Gericht soll das persönliche Erscheinen beider Parteien anordnen, wenn dies zur Aufklärung des Sachverhalts geboten erscheint. Ist einer Partei wegen großer Entfernung oder aus sonstigem wichtigen Grund die persönliche Wahrnehmung des Termins nicht zuzumuten, so sieht das Gericht von der Anordnung ihres Erscheinens ab.
(2) Wird das Erscheinen angeordnet, so ist die Partei von Amts wegen zu laden. Die Ladung ist der Partei selbst mitzuteilen, auch wenn sie einen Prozessbevollmächtigten bestellt hat; der Zustellung bedarf die Ladung nicht.
(3) Bleibt die Partei im Termin aus, so kann gegen sie Ordnungsgeld wie gegen einen im Vernehmungstermin nicht erschienenen Zeugen festgesetzt werden. Dies gilt nicht, wenn die Partei zur Verhandlung einen Vertreter entsendet, der zur Aufklärung des Tatbestandes in der Lage und zur Abgabe der gebotenen Erklärungen, insbesondere zu einem Vergleichsabschluss, ermächtigt ist. Die Partei ist auf die Folgen ihres Ausbleibens in der Ladung hinzuweisen.
§ 142 Anordnung der Urkundenvorlegung
(1) Das Gericht kann anordnen, dass eine Partei oder ein Dritter die in ihrem oder seinem Besitz befindlichen Urkunden und sonstigen Unterlagen, auf die sich eine Partei bezogen hat, vorlegt. Das Gericht kann hierfür eine Frist setzen sowie anordnen, dass die vorgelegten Unterlagen während einer von ihm zu bestimmenden Zeit auf der Geschäftsstelle verbleiben.
(2) Dritte sind zur Vorlegung nicht verpflichtet, soweit ihnen diese nicht zumutbar ist oder sie zur Zeugnisverweigerung gemäß den §§ 383 bis 385 berechtigt sind. Die §§ 386 bis 390 gelten entsprechend.
(3) Das Gericht kann anordnen, dass von in fremder Sprache abgefassten Urkunden eine Übersetzung beigebracht wird, die ein Übersetzer angefertigt hat, der für Sprachübertragungen der betreffenden Art in einem Land nach den landesrechtlichen Vorschriften ermächtigt oder öffentlich bestellt wurde oder einem solchen Übersetzer jeweils gleichgestellt ist. Eine solche Übersetzung gilt als richtig und vollständig, wenn dies von dem Übersetzer bescheinigt wird. Die Bescheinigung soll auf die Übersetzung gesetzt werden, Ort und Tag der Übersetzung sowie die Stellung des Übersetzers angeben und von ihm unterschrieben werden. Der Beweis der Unrichtigkeit oder Unvollständigkeit der Übersetzung ist zulässig. Die Anordnung nach Satz 1 kann nicht gegenüber dem Dritten ergehen.
§ 143 Anordnung der Aktenübermittlung
Das Gericht kann anordnen, dass die Parteien die in ihrem Besitz befindlichen Akten vorlegen, soweit diese aus Dokumenten bestehen, welche die Verhandlung und Entscheidung der Sache betreffen.
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§ 144 Augenschein; Sachverständige
(1) Das Gericht kann die Einnahme des Augenscheins sowie die Begutachtung durch Sachverständige anordnen. Es kann zu diesem Zweck einer Partei oder einem Dritten die Vorlegung eines in ihrem oder seinem Besitz befindlichen Gegenstandes aufgeben und hierfür eine Frist setzen. Es kann auch die Duldung der Maßnahme nach Satz 1 aufgeben, sofern nicht eine Wohnung betroffen ist.
(2) Dritte sind zur Vorlegung oder Duldung nicht verpflichtet, soweit ihnen diese nicht zumutbar ist oder sie zur Zeugnisverweigerung gemäß den §§ 383 bis 385 berechtigt sind. Die §§ 386 bis 390 gelten entsprechend.
(3) Das Verfahren richtet sich nach den Vorschriften, die eine auf Antrag angeordnete Einnahme des Augenscheins oder Begutachtung durch Sachverständige zum Gegenstand haben.
§ 145 Prozesstrennung
(1) Das Gericht kann anordnen, dass mehrere in einer Klage erhobene Ansprüche in getrennten Prozessen verhandelt werden, wenn dies aus sachlichen Gründen gerechtfertigt ist. Die Entscheidung ergeht durch Beschluss und ist zu begründen.
(2) Das Gleiche gilt, wenn der Beklagte eine Widerklage erhoben hat und der Gegenanspruch mit dem in der Klage geltend gemachten Anspruch nicht in rechtlichem Zusammenhang steht.
(3) Macht der Beklagte die Aufrechnung einer Gegenforderung geltend, die mit der in der Klage geltend gemachten Forderung nicht in rechtlichem Zusammenhang steht, so kann das Gericht anordnen, dass über die Klage und über die Aufrechnung getrennt verhandelt werde; die Vorschriften des § 302 sind anzuwenden.
§ 146 Beschränkung auf einzelne Angriffs- und Verteidigungsmittel
Das Gericht kann anordnen, dass bei mehreren auf denselben Anspruch sich beziehenden selbständigen Angriffs- oder Verteidigungsmitteln (Klagegründen, Einreden, Repliken usw.) die Verhandlung zunächst auf eines oder einige dieser Angriffs- oder Verteidigungsmittel zu beschränken sei.
§ 147 Prozessverbindung
Das Gericht kann die Verbindung mehrerer bei ihm anhängiger Prozesse derselben oder verschiedener Parteien zum Zwecke der gleichzeitigen Verhandlung und Entscheidung anordnen, wenn die Ansprüche, die den Gegenstand dieser Prozesse bilden, in rechtlichem Zusammenhang stehen oder in einer Klage hätten geltend gemacht werden können.
§ 148 Aussetzung bei Vorgreiflichkeit
Das Gericht kann, wenn die Entscheidung des Rechtsstreits ganz oder zum Teil von dem Bestehen oder Nichtbestehen eines Rechtsverhältnisses abhängt, das den Gegenstand eines anderen anhängigen Rechtsstreits bildet oder von einer Verwaltungsbehörde festzustellen ist, anordnen, dass die Verhandlung bis zur Erledigung des anderen Rechtsstreits oder bis zur Entscheidung der Verwaltungsbehörde auszusetzen sei.
§ 149 Aussetzung bei Verdacht einer Straftat
(1) Das Gericht kann, wenn sich im Laufe eines Rechtsstreits der Verdacht einer Straftat ergibt, deren Ermittlung auf die Entscheidung von Einfluss ist, die Aussetzung der Verhandlung bis zur Erledigung des Strafverfahrens anordnen.
(2) Das Gericht hat die Verhandlung auf Antrag einer Partei fortzusetzen, wenn seit der Aussetzung ein Jahr vergangen ist. Dies gilt nicht, wenn gewichtige Gründe für die Aufrechterhaltung der Aussetzung sprechen.
§ 150 Aufhebung von Trennung, Verbindung oder Aussetzung
Das Gericht kann die von ihm erlassenen, eine Trennung, Verbindung oder Aussetzung betreffenden Anordnungen wieder aufheben. § 149 Abs. 2 bleibt unberührt.
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§ 151
(weggefallen)
§ 152 Aussetzung bei Eheaufhebungsantrag
Hängt die Entscheidung eines Rechtsstreits davon ab, ob eine Ehe aufhebbar ist, und ist die Aufhebung beantragt, so hat das Gericht auf Antrag das Verfahren auszusetzen. Ist das Verfahren über die Aufhebung erledigt, so findet die Aufnahme des ausgesetzten Verfahrens statt.
§ 153 Aussetzung bei Vaterschaftsanfechtungsklage
Hängt die Entscheidung eines Rechtsstreits davon ab, ob ein Mann, dessen Vaterschaft im Wege der Anfechtungsklage angefochten worden ist, der Vater des Kindes ist, so gelten die Vorschriften des § 152 entsprechend.
§ 154 Aussetzung bei Ehe- oder Kindschaftsstreit
(1) Wird im Laufe eines Rechtsstreits streitig, ob zwischen den Parteien eine Ehe oder eine Lebenspartnerschaft bestehe oder nicht bestehe, und hängt von der Entscheidung dieser Frage die Entscheidung des Rechtsstreits ab, so hat das Gericht auf Antrag das Verfahren auszusetzen, bis der Streit über das Bestehen oder Nichtbestehen der Ehe oder der Lebenspartnerschaft im Wege der Feststellungsklage erledigt ist.
(2) Diese Vorschrift gilt entsprechend, wenn im Laufe eines Rechtsstreits streitig wird, ob zwischen den Parteien ein Eltern- und Kindesverhältnis bestehe oder nicht bestehe oder ob der einen Partei die elterliche Sorge für die andere zustehe oder nicht zustehe, und von der Entscheidung dieser Fragen die Entscheidung des Rechtsstreits abhängt.
§ 155 Aufhebung der Aussetzung bei Verzögerung
In den Fällen der §§ 152, 153 kann das Gericht auf Antrag die Anordnung, durch die das Verfahren ausgesetzt ist, aufheben, wenn die Betreibung des Rechtsstreits, der zu der Aussetzung Anlass gegeben hat, verzögert wird.
§ 156 Wiedereröffnung der Verhandlung
(1) Das Gericht kann die Wiedereröffnung einer Verhandlung, die geschlossen war, anordnen.
(2) Das Gericht hat die Wiedereröffnung insbesondere anzuordnen, wenn 1. das Gericht einen entscheidungserheblichen und rügbaren Verfahrensfehler (§ 295), insbesondere eine
Verletzung der Hinweis- und Aufklärungspflicht (§ 139) oder eine Verletzung des Anspruchs auf rechtliches Gehör, feststellt,
2. nachträglich Tatsachen vorgetragen und glaubhaft gemacht werden, die einen Wiederaufnahmegrund (§§ 579, 580) bilden, oder
3. zwischen dem Schluss der mündlichen Verhandlung und dem Schluss der Beratung und Abstimmung (§§ 192 bis 197 des Gerichtsverfassungsgesetzes) ein Richter ausgeschieden ist.
§ 157 Untervertretung in der Verhandlung
Der bevollmächtigte Rechtsanwalt kann in Verfahren, in denen die Parteien den Rechtsstreit selbst führen können, zur Vertretung in der Verhandlung einen Referendar bevollmächtigen, der im Vorbereitungsdienst bei ihm beschäftigt ist.
§ 158 Entfernung infolge Prozessleitungsanordnung
Ist eine bei der Verhandlung beteiligte Person zur Aufrechterhaltung der Ordnung von dem Ort der Verhandlung entfernt worden, so kann auf Antrag gegen sie in gleicher Weise verfahren werden, als wenn sie freiwillig sich entfernt hätte.
§ 159 Protokollaufnahme
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(1) Über die Verhandlung und jede Beweisaufnahme ist ein Protokoll aufzunehmen. Für die Protokollführung kann ein Urkundsbeamter der Geschäftsstelle zugezogen werden, wenn dies auf Grund des zu erwartenden Umfangs des Protokolls, in Anbetracht der besonderen Schwierigkeit der Sache oder aus einem sonstigen wichtigen Grund erforderlich ist.
(2) Absatz 1 gilt entsprechend für Verhandlungen, die außerhalb der Sitzung vor Richtern beim Amtsgericht oder vor beauftragten oder ersuchten Richtern stattfinden. Ein Protokoll über eine Güteverhandlung oder weitere Güteversuche vor einem Güterichter nach § 278 Absatz 5 wird nur auf übereinstimmenden Antrag der Parteien aufgenommen.
§ 160 Inhalt des Protokolls
(1) Das Protokoll enthält 1. den Ort und den Tag der Verhandlung; 2. die Namen der Richter, des Urkundsbeamten der Geschäftsstelle und des etwa zugezogenen Dolmetschers; 3. die Bezeichnung des Rechtsstreits; 4. die Namen der erschienenen Parteien, Nebenintervenienten, Vertreter, Bevollmächtigten, Beistände, Zeugen
und Sachverständigen und im Falle des § 128a den Ort, von dem aus sie an der Verhandlung teilnehmen; 5. die Angabe, dass öffentlich verhandelt oder die Öffentlichkeit ausgeschlossen worden ist.
(2) Die wesentlichen Vorgänge der Verhandlung sind aufzunehmen.
(3) Im Protokoll sind festzustellen 1. Anerkenntnis, Anspruchsverzicht und Vergleich; 2. die Anträge; 3. Geständnis und Erklärung über einen Antrag auf Parteivernehmung sowie sonstige Erklärungen, wenn ihre
Feststellung vorgeschrieben ist; 4. die Aussagen der Zeugen, Sachverständigen und vernommenen Parteien; bei einer wiederholten
Vernehmung braucht die Aussage nur insoweit in das Protokoll aufgenommen zu werden, als sie von der früheren abweicht;
5. das Ergebnis eines Augenscheins; 6. die Entscheidungen (Urteile, Beschlüsse und Verfügungen) des Gerichts; 7. die Verkündung der Entscheidungen; 8. die Zurücknahme der Klage oder eines Rechtsmittels; 9. der Verzicht auf Rechtsmittel; 10. das Ergebnis der Güteverhandlung.
(4) Die Beteiligten können beantragen, dass bestimmte Vorgänge oder Äußerungen in das Protokoll aufgenommen werden. Das Gericht kann von der Aufnahme absehen, wenn es auf die Feststellung des Vorgangs oder der Äußerung nicht ankommt. Dieser Beschluss ist unanfechtbar; er ist in das Protokoll aufzunehmen.
(5) Der Aufnahme in das Protokoll steht die Aufnahme in eine Schrift gleich, die dem Protokoll als Anlage beigefügt und in ihm als solche bezeichnet ist.
§ 160a Vorläufige Protokollaufzeichnung
(1) Der Inhalt des Protokolls kann in einer gebräuchlichen Kurzschrift, durch verständliche Abkürzungen oder auf einem Ton- oder Datenträger vorläufig aufgezeichnet werden.
(2) Das Protokoll ist in diesem Fall unverzüglich nach der Sitzung herzustellen. Soweit Feststellungen nach § 160 Abs. 3 Nr. 4 und 5 mit einem Tonaufnahmegerät vorläufig aufgezeichnet worden sind, braucht lediglich dies in dem Protokoll vermerkt zu werden. Das Protokoll ist um die Feststellungen zu ergänzen, wenn eine Partei dies bis zum rechtskräftigen Abschluss des Verfahrens beantragt oder das Rechtsmittelgericht die Ergänzung anfordert. Sind Feststellungen nach § 160 Abs. 3 Nr. 4 unmittelbar aufgenommen und ist zugleich das wesentliche Ergebnis
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der Aussagen vorläufig aufgezeichnet worden, so kann eine Ergänzung des Protokolls nur um das wesentliche Ergebnis der Aussagen verlangt werden.
(3) Die vorläufigen Aufzeichnungen sind zu den Prozessakten zu nehmen oder, wenn sie sich nicht dazu eignen, bei der Geschäftsstelle mit den Prozessakten aufzubewahren. Aufzeichnungen auf Ton- oder Datenträgern können gelöscht werden, 1. soweit das Protokoll nach der Sitzung hergestellt oder um die vorläufig aufgezeichneten Feststellungen
ergänzt ist, wenn die Parteien innerhalb eines Monats nach Mitteilung der Abschrift keine Einwendungen erhoben haben;
2. nach rechtskräftigem Abschluss des Verfahrens. Soweit das Gericht über eine zentrale Datenspeichereinrichtung verfügt, können die vorläufigen Aufzeichnungen an Stelle der Aufbewahrung nach Satz 1 auf der zentralen Datenspeichereinrichtung gespeichert werden.
(4) Die endgültige Herstellung durch Aufzeichnung auf Datenträger in der Form des § 130b ist möglich.
§ 161 Entbehrliche Feststellungen
(1) Feststellungen nach § 160 Abs. 3 Nr. 4 und 5 brauchen nicht in das Protokoll aufgenommen zu werden, 1. wenn das Prozessgericht die Vernehmung oder den Augenschein durchführt und das Endurteil der Berufung
oder der Revision nicht unterliegt; 2. soweit die Klage zurückgenommen, der geltend gemachte Anspruch anerkannt oder auf ihn verzichtet wird,
auf ein Rechtsmittel verzichtet oder der Rechtsstreit durch einen Vergleich beendet wird.
(2) In dem Protokoll ist zu vermerken, dass die Vernehmung oder der Augenschein durchgeführt worden ist. § 160a Abs. 3 gilt entsprechend.
§ 162 Genehmigung des Protokolls
(1) Das Protokoll ist insoweit, als es Feststellungen nach § 160 Abs. 3 Nr. 1, 3, 4, 5, 8, 9 oder zu Protokoll erklärte Anträge enthält, den Beteiligten vorzulesen oder zur Durchsicht vorzulegen. Ist der Inhalt des Protokolls nur vorläufig aufgezeichnet worden, so genügt es, wenn die Aufzeichnungen vorgelesen oder abgespielt werden. In dem Protokoll ist zu vermerken, dass dies geschehen und die Genehmigung erteilt ist oder welche Einwendungen erhoben worden sind.
(2) Feststellungen nach § 160 Abs. 3 Nr. 4 brauchen nicht abgespielt zu werden, wenn sie in Gegenwart der Beteiligten unmittelbar aufgezeichnet worden sind; der Beteiligte, dessen Aussage aufgezeichnet ist, kann das Abspielen verlangen. Soweit Feststellungen nach § 160 Abs. 3 Nr. 4 und 5 in Gegenwart der Beteiligten diktiert worden sind, kann das Abspielen, das Vorlesen oder die Vorlage zur Durchsicht unterbleiben, wenn die Beteiligten nach der Aufzeichnung darauf verzichten; in dem Protokoll ist zu vermerken, dass der Verzicht ausgesprochen worden ist.
§ 163 Unterschreiben des Protokolls
(1) Das Protokoll ist von dem Vorsitzenden und von dem Urkundsbeamten der Geschäftsstelle zu unterschreiben. Ist der Inhalt des Protokolls ganz oder teilweise mit einem Tonaufnahmegerät vorläufig aufgezeichnet worden, so hat der Urkundsbeamte der Geschäftsstelle die Richtigkeit der Übertragung zu prüfen und durch seine Unterschrift zu bestätigen; dies gilt auch dann, wenn der Urkundsbeamte der Geschäftsstelle zur Sitzung nicht zugezogen war.
(2) Ist der Vorsitzende verhindert, so unterschreibt für ihn der älteste beisitzende Richter; war nur ein Richter tätig und ist dieser verhindert, so genügt die Unterschrift des zur Protokollführung zugezogenen Urkundsbeamten der Geschäftsstelle. Ist dieser verhindert, so genügt die Unterschrift des Richters. Der Grund der Verhinderung soll im Protokoll vermerkt werden.
§ 164 Protokollberichtigung
(1) Unrichtigkeiten des Protokolls können jederzeit berichtigt werden.
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(2) Vor der Berichtigung sind die Parteien und, soweit es die in § 160 Abs. 3 Nr. 4 genannten Feststellungen betrifft, auch die anderen Beteiligten zu hören.
(3) Die Berichtigung wird auf dem Protokoll vermerkt; dabei kann auf eine mit dem Protokoll zu verbindende Anlage verwiesen werden. Der Vermerk ist von dem Richter, der das Protokoll unterschrieben hat, oder von dem allein tätig gewesenen Richter, selbst wenn dieser an der Unterschrift verhindert war, und von dem Urkundsbeamten der Geschäftsstelle, soweit er zur Protokollführung zugezogen war, zu unterschreiben.
(4) Erfolgt der Berichtigungsvermerk in der Form des § 130b, ist er in einem gesonderten elektronischen Dokument festzuhalten. Das Dokument ist mit dem Protokoll untrennbar zu verbinden.
§ 165 Beweiskraft des Protokolls
Die Beachtung der für die Verhandlung vorgeschriebenen Förmlichkeiten kann nur durch das Protokoll bewiesen werden. Gegen seinen diese Förmlichkeiten betreffenden Inhalt ist nur der Nachweis der Fälschung zulässig.
Titel 2 Verfahren bei Zustellungen
Untertitel 1 Zustellungen von Amts wegen § 166 Zustellung
(1) Zustellung ist die Bekanntgabe eines Dokuments an eine Person in der in diesem Titel bestimmten Form.
(2) Dokumente, deren Zustellung vorgeschrieben oder vom Gericht angeordnet ist, sind von Amts wegen zuzustellen, soweit nicht anderes bestimmt ist.
§ 167 Rückwirkung der Zustellung
Soll durch die Zustellung eine Frist gewahrt werden oder die Verjährung neu beginnen oder nach § 204 des Bürgerlichen Gesetzbuchs gehemmt werden, tritt diese Wirkung bereits mit Eingang des Antrags oder der Erklärung ein, wenn die Zustellung demnächst erfolgt.
§ 168 Aufgaben der Geschäftsstelle
(1) Die Geschäftsstelle führt die Zustellung nach §§ 173 bis 175 aus. Sie kann einen nach § 33 Abs. 1 des Postgesetzes beliehenen Unternehmer (Post) oder einen Justizbediensteten mit der Ausführung der Zustellung beauftragen. Den Auftrag an die Post erteilt die Geschäftsstelle auf dem dafür vorgesehenen Vordruck.
(2) Der Vorsitzende des Prozessgerichts oder ein von ihm bestimmtes Mitglied können einen Gerichtsvollzieher oder eine andere Behörde mit der Ausführung der Zustellung beauftragen, wenn eine Zustellung nach Absatz 1 keinen Erfolg verspricht.
§ 169 Bescheinigung des Zeitpunktes der Zustellung; Beglaubigung
(1) Die Geschäftsstelle bescheinigt auf Antrag den Zeitpunkt der Zustellung.
(2) Die Beglaubigung der zuzustellenden Schriftstücke wird von der Geschäftsstelle vorgenommen. Dies gilt auch, soweit von einem Anwalt eingereichte Schriftstücke nicht bereits von diesem beglaubigt wurden.
§ 170 Zustellung an Vertreter
(1) Bei nicht prozessfähigen Personen ist an ihren gesetzlichen Vertreter zuzustellen. Die Zustellung an die nicht prozessfähige Person ist unwirksam.
(2) Ist der Zustellungsadressat keine natürliche Person, genügt die Zustellung an den Leiter.
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(3) Bei mehreren gesetzlichen Vertretern oder Leitern genügt die Zustellung an einen von ihnen.
§ 171 Zustellung an Bevollmächtigte
An den rechtsgeschäftlich bestellten Vertreter kann mit gleicher Wirkung wie an den Vertretenen zugestellt werden. Der Vertreter hat eine schriftliche Vollmacht vorzulegen.
§ 172 Zustellung an Prozessbevollmächtigte
(1) In einem anhängigen Verfahren hat die Zustellung an den für den Rechtszug bestellten Prozessbevollmächtigten zu erfolgen. Das gilt auch für die Prozesshandlungen, die das Verfahren vor diesem Gericht infolge eines Einspruchs, einer Aufhebung des Urteils dieses Gerichts, einer Wiederaufnahme des Verfahrens, einer Rüge nach § 321a oder eines neuen Vorbringens in dem Verfahren der Zwangsvollstreckung betreffen. Das Verfahren vor dem Vollstreckungsgericht gehört zum ersten Rechtszug.
(2) Ein Schriftsatz, durch den ein Rechtsmittel eingelegt wird, ist dem Prozessbevollmächtigten des Rechtszuges zuzustellen, dessen Entscheidung angefochten wird. Wenn bereits ein Prozessbevollmächtigter für den höheren Rechtszug bestellt ist, ist der Schriftsatz diesem zuzustellen. Der Partei ist selbst zuzustellen, wenn sie einen Prozessbevollmächtigten nicht bestellt hat.
§ 173 Zustellung durch Aushändigung an der Amtsstelle
Ein Schriftstück kann dem Adressaten oder seinem rechtsgeschäftlich bestellten Vertreter durch Aushändigung an der Amtsstelle zugestellt werden. Zum Nachweis der Zustellung ist auf dem Schriftstück und in den Akten zu vermerken, dass es zum Zwecke der Zustellung ausgehändigt wurde und wann das geschehen ist; bei Aushändigung an den Vertreter ist dies mit dem Zusatz zu vermerken, an wen das Schriftstück ausgehändigt wurde und dass die Vollmacht nach § 171 Satz 2 vorgelegt wurde. Der Vermerk ist von dem Bediensteten zu unterschreiben, der die Aushändigung vorgenommen hat.
§ 174 Zustellung gegen Empfangsbekenntnis
(1) Ein Schriftstück kann an einen Anwalt, einen Notar, einen Gerichtsvollzieher, einen Steuerberater oder an eine sonstige Person, bei der auf Grund ihres Berufes von einer erhöhten Zuverlässigkeit ausgegangen werden kann, eine Behörde, eine Körperschaft oder eine Anstalt des öffentlichen Rechts gegen Empfangsbekenntnis zugestellt werden.
(2) An die in Absatz 1 Genannten kann das Schriftstück auch durch Telekopie zugestellt werden. Die Übermittlung soll mit dem Hinweis "Zustellung gegen Empfangsbekenntnis" eingeleitet werden und die absendende Stelle, den Namen und die Anschrift des Zustellungsadressaten sowie den Namen des Justizbediensteten erkennen lassen, der das Dokument zur Übermittlung aufgegeben hat.
(3) An die in Absatz 1 Genannten kann auch ein elektronisches Dokument zugestellt werden. Gleiches gilt für andere Verfahrensbeteiligte, wenn sie der Übermittlung elektronischer Dokumente ausdrücklich zugestimmt haben. Für die Übermittlung ist das Dokument mit einer elektronischen Signatur zu versehen und gegen unbefugte Kenntnisnahme Dritter zu schützen. Die Übermittlung kann auch über De-Mail-Dienste im Sinne von § 1 des De-Mail-Gesetzes erfolgen.
(4) Zum Nachweis der Zustellung genügt das mit Datum und Unterschrift des Adressaten versehene Empfangsbekenntnis, das an das Gericht zurückzusenden ist. Das Empfangsbekenntnis kann schriftlich, durch Telekopie oder als elektronisches Dokument (§ 130a) zurückgesandt werden. Wird es als elektronisches Dokument erteilt, soll es mit einer qualifizierten elektronischen Signatur nach dem Signaturgesetz versehen werden.
§ 175 Zustellung durch Einschreiben mit Rückschein
Ein Schriftstück kann durch Einschreiben mit Rückschein zugestellt werden. Zum Nachweis der Zustellung genügt der Rückschein.
§ 176 Zustellungsauftrag
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(1) Wird der Post, einem Justizbediensteten oder einem Gerichtsvollzieher ein Zustellungsauftrag erteilt oder wird eine andere Behörde um die Ausführung der Zustellung ersucht, übergibt die Geschäftsstelle das zuzustellende Schriftstück in einem verschlossenen Umschlag und ein vorbereitetes Formular einer Zustellungsurkunde.
(2) Die Ausführung der Zustellung erfolgt nach den §§ 177 bis 181.
§ 177 Ort der Zustellung
Das Schriftstück kann der Person, der zugestellt werden soll, an jedem Ort übergeben werden, an dem sie angetroffen wird.
§ 178 Ersatzzustellung in der Wohnung, in Geschäftsräumen und Einrichtungen
(1) Wird die Person, der zugestellt werden soll, in ihrer Wohnung, in dem Geschäftsraum oder in einer Gemeinschaftseinrichtung, in der sie wohnt, nicht angetroffen, kann das Schriftstück zugestellt werden 1. in der Wohnung einem erwachsenen Familienangehörigen, einer in der Familie beschäftigten Person oder
einem erwachsenen ständigen Mitbewohner, 2. in Geschäftsräumen einer dort beschäftigten Person, 3. in Gemeinschaftseinrichtungen dem Leiter der Einrichtung oder einem dazu ermächtigten Vertreter.
(2) Die Zustellung an eine der in Absatz 1 bezeichneten Personen ist unwirksam, wenn diese an dem Rechtsstreit als Gegner der Person, der zugestellt werden soll, beteiligt ist.
§ 179 Zustellung bei verweigerter Annahme
Wird die Annahme des zuzustellenden Schriftstücks unberechtigt verweigert, so ist das Schriftstück in der Wohnung oder in dem Geschäftsraum zurückzulassen. Hat der Zustellungsadressat keine Wohnung oder ist kein Geschäftsraum vorhanden, ist das zuzustellende Schriftstück zurückzusenden. Mit der Annahmeverweigerung gilt das Schriftstück als zugestellt.
§ 180 Ersatzzustellung durch Einlegen in den Briefkasten
Ist die Zustellung nach § 178 Abs. 1 Nr. 1 oder 2 nicht ausführbar, kann das Schriftstück in einen zu der Wohnung oder dem Geschäftsraum gehörenden Briefkasten oder in eine ähnliche Vorrichtung eingelegt werden, die der Adressat für den Postempfang eingerichtet hat und die in der allgemein üblichen Art für eine sichere Aufbewahrung geeignet ist. Mit der Einlegung gilt das Schriftstück als zugestellt. Der Zusteller vermerkt auf dem Umschlag des zuzustellenden Schriftstücks das Datum der Zustellung.
§ 181 Ersatzzustellung durch Niederlegung
(1) Ist die Zustellung nach § 178 Abs. 1 Nr. 3 oder § 180 nicht ausführbar, kann das zuzustellende Schriftstück auf der Geschäftsstelle des Amtsgerichts, in dessen Bezirk der Ort der Zustellung liegt, niedergelegt werden. Wird die Post mit der Ausführung der Zustellung beauftragt, ist das zuzustellende Schriftstück am Ort der Zustellung oder am Ort des Amtsgerichts bei einer von der Post dafür bestimmten Stelle niederzulegen. Über die Niederlegung ist eine schriftliche Mitteilung auf dem vorgesehenen Formular unter der Anschrift der Person, der zugestellt werden soll, in der bei gewöhnlichen Briefen üblichen Weise abzugeben oder, wenn das nicht möglich ist, an der Tür der Wohnung, des Geschäftsraums oder der Gemeinschaftseinrichtung anzuheften. Das Schriftstück gilt mit der Abgabe der schriftlichen Mitteilung als zugestellt. Der Zusteller vermerkt auf dem Umschlag des zuzustellenden Schriftstücks das Datum der Zustellung.
(2) Das niedergelegte Schriftstück ist drei Monate zur Abholung bereitzuhalten. Nicht abgeholte Schriftstücke sind danach an den Absender zurückzusenden.
§ 182 Zustellungsurkunde
(1) Zum Nachweis der Zustellung nach den §§ 171, 177 bis 181 ist eine Urkunde auf dem hierfür vorgesehenen Formular anzufertigen. Für diese Zustellungsurkunde gilt § 418.
(2) Die Zustellungsurkunde muss enthalten:
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1. die Bezeichnung der Person, der zugestellt werden soll, 2. die Bezeichnung der Person, an die der Brief oder das Schriftstück übergeben wurde, 3. im Falle des § 171 die Angabe, dass die Vollmachtsurkunde vorgelegen hat, 4. im Falle der §§ 178, 180 die Angabe des Grundes, der diese Zustellung rechtfertigt und wenn nach § 181
verfahren wurde, die Bemerkung, wie die schriftliche Mitteilung abgegeben wurde, 5. im Falle des § 179 die Erwähnung, wer die Annahme verweigert hat und dass der Brief am Ort der Zustellung
zurückgelassen oder an den Absender zurückgesandt wurde, 6. die Bemerkung, dass der Tag der Zustellung auf dem Umschlag, der das zuzustellende Schriftstück enthält,
vermerkt ist, 7. den Ort, das Datum und auf Anordnung der Geschäftsstelle auch die Uhrzeit der Zustellung, 8. Name, Vorname und Unterschrift des Zustellers sowie die Angabe des beauftragten Unternehmens oder der
ersuchten Behörde.
(3) Die Zustellungsurkunde ist der Geschäftsstelle unverzüglich zurückzuleiten.
§ 183 Zustellung im Ausland
(1) Eine Zustellung im Ausland ist nach den bestehenden völkerrechtlichen Vereinbarungen vorzunehmen. Wenn Schriftstücke auf Grund völkerrechtlicher Vereinbarungen unmittelbar durch die Post übersandt werden dürfen, so soll durch Einschreiben mit Rückschein zugestellt werden, anderenfalls die Zustellung auf Ersuchen des Vorsitzenden des Prozessgerichts unmittelbar durch die Behörden des fremden Staates erfolgen.
(2) Ist eine Zustellung nach Absatz 1 nicht möglich, ist durch die zuständige diplomatische oder konsularische Vertretung des Bundes oder die sonstige zuständige Behörde zuzustellen. Nach Satz 1 ist insbesondere zu verfahren, wenn völkerrechtliche Vereinbarungen nicht bestehen, die zuständigen Stellen des betreffenden Staates zur Rechtshilfe nicht bereit sind oder besondere Gründe eine solche Zustellung rechtfertigen.
(3) An einen Deutschen, der das Recht der Immunität genießt und zu einer Vertretung der Bundesrepublik Deutschland im Ausland gehört, erfolgt die Zustellung auf Ersuchen des Vorsitzenden des Prozessgerichts durch die zuständige Auslandsvertretung.
(4) Zum Nachweis der Zustellung nach Absatz 1 Satz 2 Halbsatz 1 genügt der Rückschein. Die Zustellung nach Absatz 1 Satz 2 Halbsatz 2 und den Absätzen 2 und 3 wird durch das Zeugnis der ersuchten Behörde nachgewiesen.
(5) Die Vorschriften der Verordnung (EG) Nr. 1393/2007 des Europäischen Parlaments und des Rates vom 13. November 2007 über die Zustellung gerichtlicher und außergerichtlicher Schriftstücke in Zivil- oder Handelssachen in den Mitgliedstaaten und zur Aufhebung der Verordnung (EG) Nr. 1348/2000 (ABl. EU Nr. L 324 S. 79) bleiben unberührt. Für die Durchführung gelten § 1068 Abs. 1 und § 1069 Abs. 1.
§ 184 Zustellungsbevollmächtigter; Zustellung durch Aufgabe zur Post
(1) Das Gericht kann bei der Zustellung nach § 183 anordnen, dass die Partei innerhalb einer angemessenen Frist einen Zustellungsbevollmächtigten benennt, der im Inland wohnt oder dort einen Geschäftsraum hat, falls sie nicht einen Prozessbevollmächtigten bestellt hat. Wird kein Zustellungsbevollmächtigter benannt, so können spätere Zustellungen bis zur nachträglichen Benennung dadurch bewirkt werden, dass das Schriftstück unter der Anschrift der Partei zur Post gegeben wird.
(2) Das Schriftstück gilt zwei Wochen nach Aufgabe zur Post als zugestellt. Das Gericht kann eine längere Frist bestimmen. In der Anordnung nach Absatz 1 ist auf diese Rechtsfolgen hinzuweisen. Zum Nachweis der Zustellung ist in den Akten zu vermerken, zu welcher Zeit und unter welcher Anschrift das Schriftstück zur Post gegeben wurde.
§ 185 Öffentliche Zustellung
Die Zustellung kann durch öffentliche Bekanntmachung (öffentliche Zustellung) erfolgen, wenn
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1. der Aufenthaltsort einer Person unbekannt und eine Zustellung an einen Vertreter oder Zustellungsbevollmächtigten nicht möglich ist,
2. bei juristischen Personen, die zur Anmeldung einer inländischen Geschäftsanschrift zum Handelsregister verpflichtet sind, eine Zustellung weder unter der eingetragenen Anschrift noch unter einer im Handelsregister eingetragenen Anschrift einer für Zustellungen empfangsberechtigten Person oder einer ohne Ermittlungen bekannten anderen inländischen Anschrift möglich ist,
3. eine Zustellung im Ausland nicht möglich ist oder keinen Erfolg verspricht oder 4. die Zustellung nicht erfolgen kann, weil der Ort der Zustellung die Wohnung einer Person ist, die nach den §§
18 bis 20 des Gerichtsverfassungsgesetzes der Gerichtsbarkeit nicht unterliegt.
§ 186 Bewilligung und Ausführung der öffentlichen Zustellung
(1) Über die Bewilligung der öffentlichen Zustellung entscheidet das Prozessgericht. Die Entscheidung kann ohne mündliche Verhandlung ergehen.
(2) Die öffentliche Zustellung erfolgt durch Aushang einer Benachrichtigung an der Gerichtstafel oder durch Einstellung in ein elektronisches Informationssystem, das im Gericht öffentlich zugänglich ist. Die Benachrichtigung kann zusätzlich in einem von dem Gericht für Bekanntmachungen bestimmten elektronischen Informations- und Kommunikationssystem veröffentlicht werden. Die Benachrichtigung muss erkennen lassen 1. die Person, für die zugestellt wird, 2. den Namen und die letzte bekannte Anschrift des Zustellungsadressaten, 3. das Datum, das Aktenzeichen des Schriftstücks und die Bezeichnung des Prozessgegenstandes sowie 4. die Stelle, wo das Schriftstück eingesehen werden kann. Die Benachrichtigung muss den Hinweis enthalten, dass ein Schriftstück öffentlich zugestellt wird und Fristen in Gang gesetzt werden können, nach deren Ablauf Rechtsverluste drohen können. Bei der Zustellung einer Ladung muss die Benachrichtigung den Hinweis enthalten, dass das Schriftstück eine Ladung zu einem Termin enthält, dessen Versäumung Rechtsnachteile zur Folge haben kann.
(3) In den Akten ist zu vermerken, wann die Benachrichtigung ausgehängt und wann sie abgenommen wurde.
§ 187 Veröffentlichung der Benachrichtigung
Das Prozessgericht kann zusätzlich anordnen, dass die Benachrichtigung einmal oder mehrfach im Bundesanzeiger oder in anderen Blättern zu veröffentlichen ist.
§ 188 Zeitpunkt der öffentlichen Zustellung
Das Schriftstück gilt als zugestellt, wenn seit dem Aushang der Benachrichtigung ein Monat vergangen ist. Das Prozessgericht kann eine längere Frist bestimmen.
§ 189 Heilung von Zustellungsmängeln
Lässt sich die formgerechte Zustellung eines Dokuments nicht nachweisen oder ist das Dokument unter Verletzung zwingender Zustellungsvorschriften zugegangen, so gilt es in dem Zeitpunkt als zugestellt, in dem das Dokument der Person, an die die Zustellung dem Gesetz gemäß gerichtet war oder gerichtet werden konnte, tatsächlich zugegangen ist.
§ 190 Einheitliche Zustellungsformulare
Das Bundesministerium der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates zur Vereinfachung und Vereinheitlichung der Zustellung Formulare einzuführen.
Untertitel 2 Zustellungen auf Betreiben der Parteien § 191 Zustellung
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Ist eine Zustellung auf Betreiben der Parteien zugelassen oder vorgeschrieben, finden die Vorschriften über die Zustellung von Amts wegen entsprechende Anwendung, soweit sich nicht aus den nachfolgenden Vorschriften Abweichungen ergeben.
§ 192 Zustellung durch Gerichtsvollzieher
(1) Die von den Parteien zu betreibenden Zustellungen erfolgen durch den Gerichtsvollzieher nach Maßgabe der §§ 193 und 194.
(2) Die Partei übergibt dem Gerichtsvollzieher das zuzustellende Schriftstück mit den erforderlichen Abschriften. Der Gerichtsvollzieher beglaubigt die Abschriften; er kann fehlende Abschriften selbst herstellen.
(3) Im Verfahren vor dem Amtsgericht kann die Partei den Gerichtsvollzieher unter Vermittlung der Geschäftsstelle des Prozessgerichts mit der Zustellung beauftragen. Insoweit hat diese den Gerichtsvollzieher mit der Zustellung zu beauftragen.
§ 193 Ausführung der Zustellung
(1) Der Gerichtsvollzieher beurkundet auf der Urschrift des zuzustellenden Schriftstücks oder auf dem mit der Urschrift zu verbindenden hierfür vorgesehenen Formular die Ausführung der Zustellung nach § 182 Abs. 2 und vermerkt die Person, in deren Auftrag er zugestellt hat. Bei Zustellung durch Aufgabe zur Post ist das Datum und die Anschrift, unter der die Aufgabe erfolgte, zu vermerken.
(2) Der Gerichtsvollzieher vermerkt auf dem zu übergebenden Schriftstück den Tag der Zustellung, sofern er nicht eine beglaubigte Abschrift der Zustellungsurkunde übergibt.
(3) Die Zustellungsurkunde ist der Partei zu übermitteln, für die zugestellt wurde.
§ 194 Zustellungsauftrag
(1) Beauftragt der Gerichtsvollzieher die Post mit der Ausführung der Zustellung, vermerkt er auf dem zuzustellenden Schriftstück, im Auftrag welcher Person er es der Post übergibt. Auf der Urschrift des zuzustellenden Schriftstücks oder auf einem mit ihr zu verbindenden Übergabebogen bezeugt er, dass die mit der Anschrift des Zustellungsadressaten, der Bezeichnung des absendenden Gerichtsvollziehers und einem Aktenzeichen versehene Sendung der Post übergeben wurde.
(2) Die Post leitet die Zustellungsurkunde unverzüglich an den Gerichtsvollzieher zurück.
§ 195 Zustellung von Anwalt zu Anwalt
(1) Sind die Parteien durch Anwälte vertreten, so kann ein Dokument auch dadurch zugestellt werden, dass der zustellende Anwalt das Dokument dem anderen Anwalt übermittelt (Zustellung von Anwalt zu Anwalt). Auch Schriftsätze, die nach den Vorschriften dieses Gesetzes vom Amts wegen zugestellt werden, können stattdessen von Anwalt zu Anwalt zugestellt werden, wenn nicht gleichzeitig dem Gegner eine gerichtliche Anordnung mitzuteilen ist. In dem Schriftsatz soll die Erklärung enthalten sein, dass von Anwalt zu Anwalt zugestellt werde. Die Zustellung ist dem Gericht, sofern dies für die zu treffende Entscheidung erforderlich ist, nachzuweisen. Für die Zustellung an einen Anwalt gilt § 174 Abs. 2 Satz 1 und Abs. 3 Satz 1, 3 entsprechend.
(2) Zum Nachweis der Zustellung genügt das mit Datum und Unterschrift versehene schriftliche Empfangsbekenntnis des Anwalts, dem zugestellt worden ist. § 174 Abs. 4 Satz 2, 3 gilt entsprechend. Der Anwalt, der zustellt, hat dem anderen Anwalt auf Verlangen eine Bescheinigung über die Zustellung zu erteilen.
§§ 195a bis 213a (weggefallen)
Titel 3 Ladungen, Termine und Fristen § 214 Ladung zum Termin
Die Ladung zu einem Termin wird von Amts wegen veranlasst.
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§ 215 Notwendiger Inhalt der Ladung zur mündlichen Verhandlung
(1) In der Ladung zur mündlichen Verhandlung ist über die Folgen einer Versäumung des Termins zu belehren (§§ 330 bis 331a). Die Belehrung hat die Rechtsfolgen aus den §§ 91 und 708 Nr. 2 zu umfassen.
(2) In Anwaltsprozessen muss die Ladung zur mündlichen Verhandlung, sofern die Zustellung nicht an einen Rechtsanwalt erfolgt, die Aufforderung enthalten, einen Anwalt zu bestellen.
§ 216 Terminsbestimmung
(1) Die Termine werden von Amts wegen bestimmt, wenn Anträge oder Erklärungen eingereicht werden, über die nur nach mündlicher Verhandlung entschieden werden kann oder über die mündliche Verhandlung vom Gericht angeordnet ist.
(2) Der Vorsitzende hat die Termine unverzüglich zu bestimmen.
(3) Auf Sonntage, allgemeine Feiertage oder Sonnabende sind Termine nur in Notfällen anzuberaumen.
§ 217 Ladungsfrist
Die Frist, die in einer anhängigen Sache zwischen der Zustellung der Ladung und dem Terminstag liegen soll (Ladungsfrist), beträgt in Anwaltsprozessen mindestens eine Woche, in anderen Prozessen mindestens drei Tage.
§ 218 Entbehrlichkeit der Ladung
Zu Terminen, die in verkündeten Entscheidungen bestimmt sind, ist eine Ladung der Parteien unbeschadet der Vorschriften des § 141 Abs. 2 nicht erforderlich.
§ 219 Terminsort
(1) Die Termine werden an der Gerichtsstelle abgehalten, sofern nicht die Einnahme eines Augenscheins an Ort und Stelle, die Verhandlung mit einer am Erscheinen vor Gericht verhinderten Person oder eine sonstige Handlung erforderlich ist, die an der Gerichtsstelle nicht vorgenommen werden kann.
(2) Der Bundespräsident ist nicht verpflichtet, persönlich an der Gerichtsstelle zu erscheinen.
§ 220 Aufruf der Sache; versäumter Termin
(1) Der Termin beginnt mit dem Aufruf der Sache.
(2) Der Termin ist von einer Partei versäumt, wenn sie bis zum Schluss nicht verhandelt.
§ 221 Fristbeginn
(1) Der Lauf einer richterlichen Frist beginnt, sofern nicht bei ihrer Festsetzung ein anderes bestimmt wird, mit der Zustellung des Dokuments, in dem die Frist festgesetzt ist, und, wenn es einer solchen Zustellung nicht bedarf, mit der Verkündung der Frist.
§ 222 Fristberechnung
(1) Für die Berechnung der Fristen gelten die Vorschriften des Bürgerlichen Gesetzbuchs.
(2) Fällt das Ende einer Frist auf einen Sonntag, einen allgemeinen Feiertag oder einen Sonnabend, so endet die Frist mit Ablauf des nächsten Werktages.
(3) Bei der Berechnung einer Frist, die nach Stunden bestimmt ist, werden Sonntage, allgemeine Feiertage und Sonnabende nicht mitgerechnet.
§ 223
(weggefallen)
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§ 224 Fristkürzung; Fristverlängerung
(1) Durch Vereinbarung der Parteien können Fristen, mit Ausnahme der Notfristen, abgekürzt werden. Notfristen sind nur diejenigen Fristen, die in diesem Gesetz als solche bezeichnet sind.
(2) Auf Antrag können richterliche und gesetzliche Fristen abgekürzt oder verlängert werden, wenn erhebliche Gründe glaubhaft gemacht sind, gesetzliche Fristen jedoch nur in den besonders bestimmten Fällen.
(3) Im Falle der Verlängerung wird die neue Frist von dem Ablauf der vorigen Frist an berechnet, wenn nicht im einzelnen Fall ein anderes bestimmt ist.
§ 225 Verfahren bei Friständerung
(1) Über das Gesuch um Abkürzung oder Verlängerung einer Frist kann ohne mündliche Verhandlung entschieden werden.
(2) Die Abkürzung oder wiederholte Verlängerung darf nur nach Anhörung des Gegners bewilligt werden.
(3) Eine Anfechtung des Beschlusses, durch den das Gesuch um Verlängerung einer Frist zurückgewiesen ist, findet nicht statt.
§ 226 Abkürzung von Zwischenfristen
(1) Einlassungsfristen, Ladungsfristen sowie diejenigen Fristen, die für die Zustellung vorbereitender Schriftsätze bestimmt sind, können auf Antrag abgekürzt werden.
(2) Die Abkürzung der Einlassungs- und der Ladungsfristen wird dadurch nicht ausgeschlossen, dass infolge der Abkürzung die mündliche Verhandlung durch Schriftsätze nicht vorbereitet werden kann.
(3) Der Vorsitzende kann bei Bestimmung des Termins die Abkürzung ohne Anhörung des Gegners und des sonst Beteiligten verfügen; diese Verfügung ist dem Beteiligten abschriftlich mitzuteilen.
§ 227 Terminsänderung
(1) Aus erheblichen Gründen kann ein Termin aufgehoben oder verlegt sowie eine Verhandlung vertagt werden. Erhebliche Gründe sind insbesondere nicht 1. das Ausbleiben einer Partei oder die Ankündigung, nicht zu erscheinen, wenn nicht das Gericht dafür hält,
dass die Partei ohne ihr Verschulden am Erscheinen verhindert ist; 2. die mangelnde Vorbereitung einer Partei, wenn nicht die Partei dies genügend entschuldigt; 3. das Einvernehmen der Parteien allein.
(2) Die erheblichen Gründe sind auf Verlangen des Vorsitzenden, für eine Vertagung auf Verlangen des Gerichts glaubhaft zu machen.
(3) Ein für die Zeit vom 1. Juli bis 31. August bestimmter Termin, mit Ausnahme eines Termins zur Verkündung einer Entscheidung, ist auf Antrag innerhalb einer Woche nach Zugang der Ladung oder Terminsbestimmung zu verlegen. Dies gilt nicht für 1. Arrestsachen oder die eine einstweilige Verfügung oder einstweilige Anordnung betreffenden Sachen, 2. Streitigkeiten wegen Überlassung, Benutzung, Räumung oder Herausgabe von Räumen oder wegen
Fortsetzung des Mietverhältnisses über Wohnraum auf Grund der §§ 574 bis 574b des Bürgerlichen Gesetzbuchs,
3. (weggefallen) 4. Wechsel- oder Scheckprozesse, 5. Bausachen, wenn über die Fortsetzung eines angefangenen Baues gestritten wird, 6. Streitigkeiten wegen Überlassung oder Herausgabe einer Sache an eine Person, bei der die Sache nicht der
Pfändung unterworfen ist,
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7. Zwangsvollstreckungsverfahren oder 8. Verfahren der Vollstreckbarerklärung oder zur Vornahme richterlicher Handlungen im Schiedsverfahren; dabei genügt es, wenn nur einer von mehreren Ansprüchen die Voraussetzungen erfüllt. Wenn das Verfahren besonderer Beschleunigung bedarf, ist dem Verlegungsantrag nicht zu entsprechen.
(4) Über die Aufhebung sowie Verlegung eines Termins entscheidet der Vorsitzende ohne mündliche Verhandlung; über die Vertagung einer Verhandlung entscheidet das Gericht. Die Entscheidung ist kurz zu begründen. Sie ist unanfechtbar.
§ 228
(weggefallen)
§ 229 Beauftragter oder ersuchter Richter
Die in diesem Titel dem Gericht und dem Vorsitzenden beigelegten Befugnisse stehen dem beauftragten oder ersuchten Richter in Bezug auf die von diesen zu bestimmenden Termine und Fristen zu.
Titel 4 Folgen der Versäumung; Rechtsbehelfsbelehrung; Wiedereinsetzung in den vorigen Stand § 230 Allgemeine Versäumungsfolge
Die Versäumung einer Prozesshandlung hat zur allgemeinen Folge, dass die Partei mit der vorzunehmenden Prozesshandlung ausgeschlossen wird.
§ 231 Keine Androhung; Nachholung der Prozesshandlung
(1) Einer Androhung der gesetzlichen Folgen der Versäumung bedarf es nicht; sie treten von selbst ein, sofern nicht dieses Gesetz einen auf Verwirklichung des Rechtsnachteils gerichteten Antrag erfordert.
(2) Im letzteren Fall kann, solange nicht der Antrag gestellt und die mündliche Verhandlung über ihn geschlossen ist, die versäumte Prozesshandlung nachgeholt werden.
§ 232 Rechtsbehelfsbelehrung
Jede anfechtbare gerichtliche Entscheidung hat eine Belehrung über das statthafte Rechtsmittel, den Einspruch, den Widerspruch oder die Erinnerung sowie über das Gericht, bei dem der Rechtsbehelf einzulegen ist, über den Sitz des Gerichts und über die einzuhaltende Form und Frist zu enthalten. Dies gilt nicht in Verfahren, in denen sich die Parteien durch einen Rechtsanwalt vertreten lassen müssen, es sei denn, es ist über einen Einspruch oder Widerspruch zu belehren oder die Belehrung ist an einen Zeugen oder Sachverständigen zu richten. Über die Möglichkeit der Sprungrevision muss nicht belehrt werden.
§ 233 Wiedereinsetzung in den vorigen Stand
War eine Partei ohne ihr Verschulden verhindert, eine Notfrist oder die Frist zur Begründung der Berufung, der Revision, der Nichtzulassungsbeschwerde oder der Rechtsbeschwerde oder die Frist des § 234 Abs. 1 einzuhalten, so ist ihr auf Antrag Wiedereinsetzung in den vorigen Stand zu gewähren. Ein Fehlen des Verschuldens wird vermutet, wenn eine Rechtsbehelfsbelehrung unterblieben oder fehlerhaft ist.
§ 234 Wiedereinsetzungsfrist
(1) Die Wiedereinsetzung muss innerhalb einer zweiwöchigen Frist beantragt werden. Die Frist beträgt einen Monat, wenn die Partei verhindert ist, die Frist zur Begründung der Berufung, der Revision, der Nichtzulassungsbeschwerde oder der Rechtsbeschwerde einzuhalten.
(2) Die Frist beginnt mit dem Tag, an dem das Hindernis behoben ist.
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(3) Nach Ablauf eines Jahres, von dem Ende der versäumten Frist an gerechnet, kann die Wiedereinsetzung nicht mehr beantragt werden.
§ 235
(weggefallen)
§ 236 Wiedereinsetzungsantrag
(1) Die Form des Antrags auf Wiedereinsetzung richtet sich nach den Vorschriften, die für die versäumte Prozesshandlung gelten.
(2) Der Antrag muss die Angabe der die Wiedereinsetzung begründenden Tatsachen enthalten; diese sind bei der Antragstellung oder im Verfahren über den Antrag glaubhaft zu machen. Innerhalb der Antragsfrist ist die versäumte Prozesshandlung nachzuholen; ist dies geschehen, so kann Wiedereinsetzung auch ohne Antrag gewährt werden.
§ 237 Zuständigkeit für Wiedereinsetzung
Über den Antrag auf Wiedereinsetzung entscheidet das Gericht, dem die Entscheidung über die nachgeholte Prozesshandlung zusteht.
§ 238 Verfahren bei Wiedereinsetzung
(1) Das Verfahren über den Antrag auf Wiedereinsetzung ist mit dem Verfahren über die nachgeholte Prozesshandlung zu verbinden. Das Gericht kann jedoch das Verfahren zunächst auf die Verhandlung und Entscheidung über den Antrag beschränken.
(2) Auf die Entscheidung über die Zulässigkeit des Antrags und auf die Anfechtung der Entscheidung sind die Vorschriften anzuwenden, die in diesen Beziehungen für die nachgeholte Prozesshandlung gelten. Der Partei, die den Antrag gestellt hat, steht jedoch der Einspruch nicht zu.
(3) Die Wiedereinsetzung ist unanfechtbar.
(4) Die Kosten der Wiedereinsetzung fallen dem Antragsteller zur Last, soweit sie nicht durch einen unbegründeten Widerspruch des Gegners entstanden sind.
Titel 5 Unterbrechung und Aussetzung des Verfahrens § 239 Unterbrechung durch Tod der Partei
(1) Im Falle des Todes einer Partei tritt eine Unterbrechung des Verfahrens bis zu dessen Aufnahme durch die Rechtsnachfolger ein.
(2) Wird die Aufnahme verzögert, so sind auf Antrag des Gegners die Rechtsnachfolger zur Aufnahme und zugleich zur Verhandlung der Hauptsache zu laden.
(3) Die Ladung ist mit dem den Antrag enthaltenden Schriftsatz den Rechtsnachfolgern selbst zuzustellen. Die Ladungsfrist wird von dem Vorsitzenden bestimmt.
(4) Erscheinen die Rechtsnachfolger in dem Termin nicht, so ist auf Antrag die behauptete Rechtsnachfolge als zugestanden anzunehmen und zur Hauptsache zu verhandeln.
(5) Der Erbe ist vor der Annahme der Erbschaft zur Fortsetzung des Rechtsstreits nicht verpflichtet.
§ 240 Unterbrechung durch Insolvenzverfahren
Im Falle der Eröffnung des Insolvenzverfahrens über das Vermögen einer Partei wird das Verfahren, wenn es die Insolvenzmasse betrifft, unterbrochen, bis es nach den für das Insolvenzverfahren geltenden Vorschriften
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aufgenommen oder das Insolvenzverfahren beendet wird. Entsprechendes gilt, wenn die Verwaltungs- und Verfügungsbefugnis über das Vermögen des Schuldners auf einen vorläufigen Insolvenzverwalter übergeht.
§ 241 Unterbrechung durch Prozessunfähigkeit
(1) Verliert eine Partei die Prozessfähigkeit oder stirbt der gesetzliche Vertreter einer Partei oder hört seine Vertretungsbefugnis auf, ohne dass die Partei prozessfähig geworden ist, so wird das Verfahren unterbrochen, bis der gesetzliche Vertreter oder der neue gesetzliche Vertreter von seiner Bestellung dem Gericht Anzeige macht oder der Gegner seine Absicht, das Verfahren fortzusetzen, dem Gericht angezeigt und das Gericht diese Anzeige von Amts wegen zugestellt hat.
(2) Die Anzeige des gesetzlichen Vertreters ist dem Gegner der durch ihn vertretenen Partei, die Anzeige des Gegners ist dem Vertreter zuzustellen.
(3) Diese Vorschriften sind entsprechend anzuwenden, wenn eine Nachlassverwaltung angeordnet wird.
§ 242 Unterbrechung durch Nacherbfolge
Tritt während des Rechtsstreits zwischen einem Vorerben und einem Dritten über einen der Nacherbfolge unterliegenden Gegenstand der Fall der Nacherbfolge ein, so gelten, sofern der Vorerbe befugt war, ohne Zustimmung des Nacherben über den Gegenstand zu verfügen, hinsichtlich der Unterbrechung und der Aufnahme des Verfahrens die Vorschriften des § 239 entsprechend.
§ 243 Aufnahme bei Nachlasspflegschaft und Testamentsvollstreckung
Wird im Falle der Unterbrechung des Verfahrens durch den Tod einer Partei ein Nachlasspfleger bestellt oder ist ein zur Führung des Rechtsstreits berechtigter Testamentsvollstrecker vorhanden, so sind die Vorschriften des § 241 und, wenn über den Nachlass das Insolvenzverfahren eröffnet wird, die Vorschriften des § 240 bei der Aufnahme des Verfahrens anzuwenden.
§ 244 Unterbrechung durch Anwaltsverlust
(1) Stirbt in Anwaltsprozessen der Anwalt einer Partei oder wird er unfähig, die Vertretung der Partei fortzuführen, so tritt eine Unterbrechung des Verfahrens ein, bis der bestellte neue Anwalt seine Bestellung dem Gericht angezeigt und das Gericht die Anzeige dem Gegner von Amts wegen zugestellt hat.
(2) Wird diese Anzeige verzögert, so ist auf Antrag des Gegners die Partei selbst zur Verhandlung der Hauptsache zu laden oder zur Bestellung eines neuen Anwalts binnen einer von dem Vorsitzenden zu bestimmenden Frist aufzufordern. Wird dieser Aufforderung nicht Folge geleistet, so ist das Verfahren als aufgenommen anzusehen. Bis zur nachträglichen Anzeige der Bestellung eines neuen Anwalts erfolgen alle Zustellungen an die zur Anzeige verpflichtete Partei.
§ 245 Unterbrechung durch Stillstand der Rechtspflege
Hört infolge eines Krieges oder eines anderen Ereignisses die Tätigkeit des Gerichts auf, so wird für die Dauer dieses Zustandes das Verfahren unterbrochen.
§ 246 Aussetzung bei Vertretung durch Prozessbevollmächtigten
(1) Fand in den Fällen des Todes, des Verlustes der Prozessfähigkeit, des Wegfalls des gesetzlichen Vertreters, der Anordnung einer Nachlassverwaltung oder des Eintritts der Nacherbfolge (§§ 239, 241, 242) eine Vertretung durch einen Prozessbevollmächtigten statt, so tritt eine Unterbrechung des Verfahrens nicht ein; das Prozessgericht hat jedoch auf Antrag des Bevollmächtigten, in den Fällen des Todes und der Nacherbfolge auch auf Antrag des Gegners die Aussetzung des Verfahrens anzuordnen.
(2) Die Dauer der Aussetzung und die Aufnahme des Verfahrens richten sich nach den Vorschriften der §§ 239, 241 bis 243; in den Fällen des Todes und der Nacherbfolge ist die Ladung mit dem Schriftsatz, in dem sie beantragt ist, auch dem Bevollmächtigten zuzustellen.
§ 247 Aussetzung bei abgeschnittenem Verkehr
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Hält sich eine Partei an einem Ort auf, der durch obrigkeitliche Anordnung oder durch Krieg oder durch andere Zufälle von dem Verkehr mit dem Prozessgericht abgeschnitten ist, so kann das Gericht auch von Amts wegen die Aussetzung des Verfahrens bis zur Beseitigung des Hindernisses anordnen.
§ 248 Verfahren bei Aussetzung
(1) Das Gesuch um Aussetzung des Verfahrens ist bei dem Prozessgericht anzubringen; es kann vor der Geschäftsstelle zu Protokoll erklärt werden.
(2) Die Entscheidung kann ohne mündliche Verhandlung ergehen.
§ 249 Wirkung von Unterbrechung und Aussetzung
(1) Die Unterbrechung und Aussetzung des Verfahrens hat die Wirkung, dass der Lauf einer jeden Frist aufhört und nach Beendigung der Unterbrechung oder Aussetzung die volle Frist von neuem zu laufen beginnt.
(2) Die während der Unterbrechung oder Aussetzung von einer Partei in Ansehung der Hauptsache vorgenommenen Prozesshandlungen sind der anderen Partei gegenüber ohne rechtliche Wirkung.
(3) Durch die nach dem Schluss einer mündlichen Verhandlung eintretende Unterbrechung wird die Verkündung der auf Grund dieser Verhandlung zu erlassenden Entscheidung nicht gehindert.
§ 250 Form von Aufnahme und Anzeige
Die Aufnahme eines unterbrochenen oder ausgesetzten Verfahrens und die in diesem Titel erwähnten Anzeigen erfolgen durch Zustellung eines bei Gericht einzureichenden Schriftsatzes.
§ 251 Ruhen des Verfahrens
Das Gericht hat das Ruhen des Verfahrens anzuordnen, wenn beide Parteien dies beantragen und anzunehmen ist, dass wegen Schwebens von Vergleichsverhandlungen oder aus sonstigen wichtigen Gründen diese Anordnung zweckmäßig ist. Die Anordnung hat auf den Lauf der im § 233 bezeichneten Fristen keinen Einfluss.
§ 251a Säumnis beider Parteien; Entscheidung nach Lage der Akten
(1) Erscheinen oder verhandeln in einem Termin beide Parteien nicht, so kann das Gericht nach Lage der Akten entscheiden.
(2) Ein Urteil nach Lage der Akten darf nur ergehen, wenn in einem früheren Termin mündlich verhandelt worden ist. Es darf frühestens in zwei Wochen verkündet werden. Das Gericht hat der nicht erschienenen Partei den Verkündungstermin formlos mitzuteilen. Es bestimmt neuen Termin zur mündlichen Verhandlung, wenn die Partei dies spätestens am siebenten Tag vor dem zur Verkündung bestimmten Termin beantragt und glaubhaft macht, dass sie ohne ihr Verschulden ausgeblieben ist und die Verlegung des Termins nicht rechtzeitig beantragen konnte.
(3) Wenn das Gericht nicht nach Lage der Akten entscheidet und nicht nach § 227 vertagt, ordnet es das Ruhen des Verfahrens an.
§ 252 Rechtsmittel bei Aussetzung
Gegen die Entscheidung, durch die auf Grund der Vorschriften dieses Titels oder auf Grund anderer gesetzlicher Bestimmungen die Aussetzung des Verfahrens angeordnet oder abgelehnt wird, findet die sofortige Beschwerde statt.
Buch 2 Verfahren im ersten Rechtszug
Abschnitt 1
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Verfahren vor den Landgerichten
Titel 1 Verfahren bis zum Urteil § 253 Klageschrift
(1) Die Erhebung der Klage erfolgt durch Zustellung eines Schriftsatzes (Klageschrift).
(2) Die Klageschrift muss enthalten: 1. die Bezeichnung der Parteien und des Gerichts; 2. die bestimmte Angabe des Gegenstandes und des Grundes des erhobenen Anspruchs, sowie einen
bestimmten Antrag.
(3) Die Klageschrift soll ferner enthalten: 1. die Angabe, ob der Klageerhebung der Versuch einer Mediation oder eines anderen Verfahrens der
außergerichtlichen Konfliktbeilegung vorausgegangen ist, sowie eine Äußerung dazu, ob einem solchen Verfahren Gründe entgegenstehen;
2. die Angabe des Wertes des Streitgegenstandes, wenn hiervon die Zuständigkeit des Gerichts abhängt und der Streitgegenstand nicht in einer bestimmten Geldsumme besteht;
3. eine Äußerung dazu, ob einer Entscheidung der Sache durch den Einzelrichter Gründe entgegenstehen.
(4) Außerdem sind die allgemeinen Vorschriften über die vorbereitenden Schriftsätze auch auf die Klageschrift anzuwenden.
(5) Die Klageschrift sowie sonstige Anträge und Erklärungen einer Partei, die zugestellt werden sollen, sind bei dem Gericht schriftlich unter Beifügung der für ihre Zustellung oder Mitteilung erforderlichen Zahl von Abschriften einzureichen. Einer Beifügung von Abschriften bedarf es nicht, soweit die Klageschrift elektronisch eingereicht wird.
§ 254 Stufenklage
Wird mit der Klage auf Rechnungslegung oder auf Vorlegung eines Vermögensverzeichnisses oder auf Abgabe einer eidesstattlichen Versicherung die Klage auf Herausgabe desjenigen verbunden, was der Beklagte aus dem zugrunde liegenden Rechtsverhältnis schuldet, so kann die bestimmte Angabe der Leistungen, die der Kläger beansprucht, vorbehalten werden, bis die Rechnung mitgeteilt, das Vermögensverzeichnis vorgelegt oder die eidesstattliche Versicherung abgegeben ist.
§ 255 Fristbestimmung im Urteil
(1) Hat der Kläger für den Fall, dass der Beklagte nicht vor dem Ablauf einer ihm zu bestimmenden Frist den erhobenen Anspruch befriedigt, das Recht, Schadensersatz wegen Nichterfüllung zu fordern oder die Aufhebung eines Vertrages herbeizuführen, so kann er verlangen, dass die Frist im Urteil bestimmt wird.
(2) Das Gleiche gilt, wenn dem Kläger das Recht, die Anordnung einer Verwaltung zu verlangen, für den Fall zusteht, dass der Beklagte nicht vor dem Ablauf einer ihm zu bestimmenden Frist die beanspruchte Sicherheit leistet, sowie im Falle des § 2193 Abs. 2 des Bürgerlichen Gesetzbuchs für die Bestimmung einer Frist zur Vollziehung der Auflage.
§ 256 Feststellungsklage
(1) Auf Feststellung des Bestehens oder Nichtbestehens eines Rechtsverhältnisses, auf Anerkennung einer Urkunde oder auf Feststellung ihrer Unechtheit kann Klage erhoben werden, wenn der Kläger ein rechtliches Interesse daran hat, dass das Rechtsverhältnis oder die Echtheit oder Unechtheit der Urkunde durch richterliche Entscheidung alsbald festgestellt werde.
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(2) Bis zum Schluss derjenigen mündlichen Verhandlung, auf die das Urteil ergeht, kann der Kläger durch Erweiterung des Klageantrags, der Beklagte durch Erhebung einer Widerklage beantragen, dass ein im Laufe des Prozesses streitig gewordenes Rechtsverhältnis, von dessen Bestehen oder Nichtbestehen die Entscheidung des Rechtsstreits ganz oder zum Teil abhängt, durch richterliche Entscheidung festgestellt werde.
§ 257 Klage auf künftige Zahlung oder Räumung
Ist die Geltendmachung einer nicht von einer Gegenleistung abhängigen Geldforderung oder die Geltendmachung des Anspruchs auf Räumung eines Grundstücks oder eines Raumes, der anderen als Wohnzwecken dient, an den Eintritt eines Kalendertages geknüpft, so kann Klage auf künftige Zahlung oder Räumung erhoben werden.
§ 258 Klage auf wiederkehrende Leistungen
Bei wiederkehrenden Leistungen kann auch wegen der erst nach Erlass des Urteils fällig werdenden Leistungen Klage auf künftige Entrichtung erhoben werden.
§ 259 Klage wegen Besorgnis nicht rechtzeitiger Leistung
Klage auf künftige Leistung kann außer den Fällen der §§ 257, 258 erhoben werden, wenn den Umständen nach die Besorgnis gerechtfertigt ist, dass der Schuldner sich der rechtzeitigen Leistung entziehen werde.
§ 260 Anspruchshäufung
Mehrere Ansprüche des Klägers gegen denselben Beklagten können, auch wenn sie auf verschiedenen Gründen beruhen, in einer Klage verbunden werden, wenn für sämtliche Ansprüche das Prozessgericht zuständig und dieselbe Prozessart zulässig ist.
§ 261 Rechtshängigkeit
(1) Durch die Erhebung der Klage wird die Rechtshängigkeit der Streitsache begründet.
(2) Die Rechtshängigkeit eines erst im Laufe des Prozesses erhobenen Anspruchs tritt mit dem Zeitpunkt ein, in dem der Anspruch in der mündlichen Verhandlung geltend gemacht oder ein den Erfordernissen des § 253 Abs. 2 Nr. 2 entsprechender Schriftsatz zugestellt wird.
(3) Die Rechtshängigkeit hat folgende Wirkungen: 1. während der Dauer der Rechtshängigkeit kann die Streitsache von keiner Partei anderweitig anhängig
gemacht werden; 2. die Zuständigkeit des Prozessgerichts wird durch eine Veränderung der sie begründenden Umstände nicht
berührt.
§ 262 Sonstige Wirkungen der Rechtshängigkeit
Die Vorschriften des bürgerlichen Rechts über die sonstigen Wirkungen der Rechtshängigkeit bleiben unberührt. Diese Wirkungen sowie alle Wirkungen, die durch die Vorschriften des bürgerlichen Rechts an die Anstellung, Mitteilung oder gerichtliche Anmeldung der Klage, an die Ladung oder Einlassung des Beklagten geknüpft werden, treten unbeschadet der Vorschrift des § 167 mit der Erhebung der Klage ein.
§ 263 Klageänderung
Nach dem Eintritt der Rechtshängigkeit ist eine Änderung der Klage zulässig, wenn der Beklagte einwilligt oder das Gericht sie für sachdienlich erachtet.
§ 264 Keine Klageänderung
Als eine Änderung der Klage ist es nicht anzusehen, wenn ohne Änderung des Klagegrundes 1. die tatsächlichen oder rechtlichen Anführungen ergänzt oder berichtigt werden; 2. der Klageantrag in der Hauptsache oder in Bezug auf Nebenforderungen erweitert oder beschränkt wird;
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3. statt des ursprünglich geforderten Gegenstandes wegen einer später eingetretenen Veränderung ein anderer Gegenstand oder das Interesse gefordert wird.
§ 265 Veräußerung oder Abtretung der Streitsache
(1) Die Rechtshängigkeit schließt das Recht der einen oder der anderen Partei nicht aus, die in Streit befangene Sache zu veräußern oder den geltend gemachten Anspruch abzutreten.
(2) Die Veräußerung oder Abtretung hat auf den Prozess keinen Einfluss. Der Rechtsnachfolger ist nicht berechtigt, ohne Zustimmung des Gegners den Prozess als Hauptpartei an Stelle des Rechtsvorgängers zu übernehmen oder eine Hauptintervention zu erheben. Tritt der Rechtsnachfolger als Nebenintervenient auf, so ist § 69 nicht anzuwenden.
(3) Hat der Kläger veräußert oder abgetreten, so kann ihm, sofern das Urteil nach § 325 gegen den Rechtsnachfolger nicht wirksam sein würde, der Einwand entgegengesetzt werden, dass er zur Geltendmachung des Anspruchs nicht mehr befugt sei.
§ 266 Veräußerung eines Grundstücks
(1) Ist über das Bestehen oder Nichtbestehen eines Rechts, das für ein Grundstück in Anspruch genommen wird, oder einer Verpflichtung, die auf einem Grundstück ruhen soll, zwischen dem Besitzer und einem Dritten ein Rechtsstreit anhängig, so ist im Falle der Veräußerung des Grundstücks der Rechtsnachfolger berechtigt und auf Antrag des Gegners verpflichtet, den Rechtsstreit in der Lage, in der er sich befindet, als Hauptpartei zu übernehmen. Entsprechendes gilt für einen Rechtsstreit über das Bestehen oder Nichtbestehen einer Verpflichtung, die auf einem eingetragenen Schiff oder Schiffsbauwerk ruhen soll.
(2) Diese Bestimmung ist insoweit nicht anzuwenden, als ihr Vorschriften des bürgerlichen Rechts zugunsten derjenigen, die Rechte von einem Nichtberechtigten herleiten, entgegenstehen. In einem solchen Fall gilt, wenn der Kläger veräußert hat, die Vorschrift des § 265 Abs. 3.
§ 267 Vermutete Einwilligung in die Klageänderung
Die Einwilligung des Beklagten in die Änderung der Klage ist anzunehmen, wenn er, ohne der Änderung zu widersprechen, sich in einer mündlichen Verhandlung auf die abgeänderte Klage eingelassen hat.
§ 268 Unanfechtbarkeit der Entscheidung
Eine Anfechtung der Entscheidung, dass eine Änderung der Klage nicht vorliege oder dass die Änderung zuzulassen sei, findet nicht statt.
§ 269 Klagerücknahme
(1) Die Klage kann ohne Einwilligung des Beklagten nur bis zum Beginn der mündlichen Verhandlung des Beklagten zur Hauptsache zurückgenommen werden.
(2) Die Zurücknahme der Klage und, soweit sie zur Wirksamkeit der Zurücknahme erforderlich ist, auch die Einwilligung des Beklagten sind dem Gericht gegenüber zu erklären. Die Zurücknahme der Klage erfolgt, wenn sie nicht bei der mündlichen Verhandlung erklärt wird, durch Einreichung eines Schriftsatzes. Der Schriftsatz ist dem Beklagten zuzustellen, wenn seine Einwilligung zur Wirksamkeit der Zurücknahme der Klage erforderlich ist. Widerspricht der Beklagte der Zurücknahme der Klage nicht innerhalb einer Notfrist von zwei Wochen seit der Zustellung des Schriftsatzes, so gilt seine Einwilligung als erteilt, wenn der Beklagte zuvor auf diese Folge hingewiesen worden ist.
(3) Wird die Klage zurückgenommen, so ist der Rechtsstreit als nicht anhängig geworden anzusehen; ein bereits ergangenes, noch nicht rechtskräftiges Urteil wird wirkungslos, ohne dass es seiner ausdrücklichen Aufhebung bedarf. Der Kläger ist verpflichtet, die Kosten des Rechtsstreits zu tragen, soweit nicht bereits rechtskräftig über sie erkannt ist oder sie dem Beklagten aus einem anderen Grund aufzuerlegen sind. Ist der Anlass zur Einreichung der Klage vor Rechtshängigkeit weggefallen und wird die Klage daraufhin zurückgenommen, so bestimmt sich die Kostentragungspflicht unter Berücksichtigung des bisherigen Sach- und Streitstandes nach billigem Ermessen; dies gilt auch, wenn die Klage nicht zugestellt wurde.
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(4) Das Gericht entscheidet auf Antrag über die nach Absatz 3 eintretenden Wirkungen durch Beschluss. Ist einem Beklagten Prozesskostenhilfe bewilligt worden, hat das Gericht über die Kosten von Amts wegen zu entscheiden.
(5) Gegen den Beschluss findet die sofortige Beschwerde statt, wenn der Streitwert der Hauptsache den in § 511 genannten Betrag übersteigt. Die Beschwerde ist unzulässig, wenn gegen die Entscheidung über den Festsetzungsantrag (§ 104) ein Rechtsmittel nicht mehr zulässig ist.
(6) Wird die Klage von neuem angestellt, so kann der Beklagte die Einlassung verweigern, bis die Kosten erstattet sind.
§ 270 Zustellung; formlose Mitteilung
Mit Ausnahme der Klageschrift und solcher Schriftsätze, die Sachanträge enthalten, sind Schriftsätze und sonstige Erklärungen der Parteien, sofern nicht das Gericht die Zustellung anordnet, ohne besondere Form mitzuteilen. Bei Übersendung durch die Post gilt die Mitteilung, wenn die Wohnung der Partei im Bereich des Ortsbestellverkehrs liegt, an dem folgenden, im Übrigen an dem zweiten Werktag nach der Aufgabe zur Post als bewirkt, sofern nicht die Partei glaubhaft macht, dass ihr die Mitteilung nicht oder erst in einem späteren Zeitpunkt zugegangen ist.
§ 271 Zustellung der Klageschrift
(1) Die Klageschrift ist unverzüglich zuzustellen.
(2) Mit der Zustellung ist der Beklagte aufzufordern, einen Rechtsanwalt zu bestellen, wenn er eine Verteidigung gegen die Klage beabsichtigt.
§ 272 Bestimmung der Verfahrensweise
(1) Der Rechtsstreit ist in der Regel in einem umfassend vorbereiteten Termin zur mündlichen Verhandlung (Haupttermin) zu erledigen.
(2) Der Vorsitzende bestimmt entweder einen frühen ersten Termin zur mündlichen Verhandlung (§ 275) oder veranlasst ein schriftliches Vorverfahren (§ 276).
(3) Die Güteverhandlung und die mündliche Verhandlung sollen so früh wie möglich stattfinden.
(4) Räumungssachen sind vorrangig und beschleunigt durchzuführen.
§ 273 Vorbereitung des Termins
(1) Das Gericht hat erforderliche vorbereitende Maßnahmen rechtzeitig zu veranlassen.
(2) Zur Vorbereitung jedes Termins kann der Vorsitzende oder ein von ihm bestimmtes Mitglied des Prozessgerichts insbesondere 1. den Parteien die Ergänzung oder Erläuterung ihrer vorbereitenden Schriftsätze aufgeben, insbesondere eine
Frist zur Erklärung über bestimmte klärungsbedürftige Punkte setzen; 2. Behörden oder Träger eines öffentlichen Amtes um Mitteilung von Urkunden oder um Erteilung amtlicher
Auskünfte ersuchen; 3. das persönliche Erscheinen der Parteien anordnen; 4. Zeugen, auf die sich eine Partei bezogen hat, und Sachverständige zur mündlichen Verhandlung laden sowie
eine Anordnung nach § 378 treffen; 5. Anordnungen nach den §§ 142, 144 treffen.
(3) Anordnungen nach Absatz 2 Nr. 4 und, soweit die Anordnungen nicht gegenüber einer Partei zu treffen sind, 5 sollen nur ergehen, wenn der Beklagte dem Klageanspruch bereits widersprochen hat. Für die Anordnungen nach Absatz 2 Nr. 4 gilt § 379 entsprechend.
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(4) Die Parteien sind von jeder Anordnung zu benachrichtigen. Wird das persönliche Erscheinen der Parteien angeordnet, so gelten die Vorschriften des § 141 Abs. 2, 3.
§ 274 Ladung der Parteien; Einlassungsfrist
(1) Nach der Bestimmung des Termins zur mündlichen Verhandlung ist die Ladung der Parteien durch die Geschäftsstelle zu veranlassen.
(2) Die Ladung ist dem Beklagten mit der Klageschrift zuzustellen, wenn das Gericht einen frühen ersten Verhandlungstermin bestimmt.
(3) Zwischen der Zustellung der Klageschrift und dem Termin zur mündlichen Verhandlung muss ein Zeitraum von mindestens zwei Wochen liegen (Einlassungsfrist). Ist die Zustellung im Ausland vorzunehmen, so hat der Vorsitzende bei der Festsetzung des Termins die Einlassungsfrist zu bestimmen.
§ 275 Früher erster Termin
(1) Zur Vorbereitung des frühen ersten Termins zur mündlichen Verhandlung kann der Vorsitzende oder ein von ihm bestimmtes Mitglied des Prozessgerichts dem Beklagten eine Frist zur schriftlichen Klageerwiderung setzen. Andernfalls ist der Beklagte aufzufordern, etwa vorzubringende Verteidigungsmittel unverzüglich durch den zu bestellenden Rechtsanwalt in einem Schriftsatz dem Gericht mitzuteilen; § 277 Abs. 1 Satz 2 gilt entsprechend.
(2) Wird das Verfahren in dem frühen ersten Termin zur mündlichen Verhandlung nicht abgeschlossen, so trifft das Gericht alle Anordnungen, die zur Vorbereitung des Haupttermins noch erforderlich sind.
(3) Das Gericht setzt in dem Termin eine Frist zur schriftlichen Klageerwiderung, wenn der Beklagte noch nicht oder nicht ausreichend auf die Klage erwidert hat und ihm noch keine Frist nach Absatz 1 Satz 1 gesetzt war.
(4) Das Gericht kann dem Kläger in dem Termin oder nach Eingang der Klageerwiderung eine Frist zur schriftlichen Stellungnahme auf die Klageerwiderung setzen. Außerhalb der mündlichen Verhandlung kann der Vorsitzende die Frist setzen.
§ 276 Schriftliches Vorverfahren
(1) Bestimmt der Vorsitzende keinen frühen ersten Termin zur mündlichen Verhandlung, so fordert er den Beklagten mit der Zustellung der Klage auf, wenn er sich gegen die Klage verteidigen wolle, dies binnen einer Notfrist von zwei Wochen nach Zustellung der Klageschrift dem Gericht schriftlich anzuzeigen; der Kläger ist von der Aufforderung zu unterrichten. Zugleich ist dem Beklagten eine Frist von mindestens zwei weiteren Wochen zur schriftlichen Klageerwiderung zu setzen. Ist die Zustellung der Klage im Ausland vorzunehmen, so bestimmt der Vorsitzende die Frist nach Satz 1.
(2) Mit der Aufforderung ist der Beklagte über die Folgen einer Versäumung der ihm nach Absatz 1 Satz 1 gesetzten Frist sowie darüber zu belehren, dass er die Erklärung, der Klage entgegentreten zu wollen, nur durch den zu bestellenden Rechtsanwalt abgeben kann. Die Belehrung über die Möglichkeit des Erlasses eines Versäumnisurteils nach § 331 Abs. 3 hat die Rechtsfolgen aus den §§ 91 und 708 Nr. 2 zu umfassen.
(3) Der Vorsitzende kann dem Kläger eine Frist zur schriftlichen Stellungnahme auf die Klageerwiderung setzen.
§ 277 Klageerwiderung; Replik
(1) In der Klageerwiderung hat der Beklagte seine Verteidigungsmittel vorzubringen, soweit es nach der Prozesslage einer sorgfältigen und auf Förderung des Verfahrens bedachten Prozessführung entspricht. Die Klageerwiderung soll ferner eine Äußerung dazu enthalten, ob einer Entscheidung der Sache durch den Einzelrichter Gründe entgegenstehen.
(2) Der Beklagte ist darüber, dass die Klageerwiderung durch den zu bestellenden Rechtsanwalt bei Gericht einzureichen ist, und über die Folgen einer Fristversäumung zu belehren.
(3) Die Frist zur schriftlichen Klageerwiderung nach § 275 Abs. 1 Satz 1, Abs. 3 beträgt mindestens zwei Wochen.
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(4) Für die schriftliche Stellungnahme auf die Klageerwiderung gelten Absatz 1 Satz 1 und Absätze 2 und 3 entsprechend.
§ 278 Gütliche Streitbeilegung, Güteverhandlung, Vergleich
(1) Das Gericht soll in jeder Lage des Verfahrens auf eine gütliche Beilegung des Rechtsstreits oder einzelner Streitpunkte bedacht sein.
(2) Der mündlichen Verhandlung geht zum Zwecke der gütlichen Beilegung des Rechtsstreits eine Güteverhandlung voraus, es sei denn, es hat bereits ein Einigungsversuch vor einer außergerichtlichen Gütestelle stattgefunden oder die Güteverhandlung erscheint erkennbar aussichtslos. Das Gericht hat in der Güteverhandlung den Sach- und Streitstand mit den Parteien unter freier Würdigung aller Umstände zu erörtern und, soweit erforderlich, Fragen zu stellen. Die erschienenen Parteien sollen hierzu persönlich gehört werden.
(3) Für die Güteverhandlung sowie für weitere Güteversuche soll das persönliche Erscheinen der Parteien angeordnet werden. § 141 Abs. 1 Satz 2, Abs. 2 und 3 gilt entsprechend.
(4) Erscheinen beide Parteien in der Güteverhandlung nicht, ist das Ruhen des Verfahrens anzuordnen.
(5) Das Gericht kann die Parteien für die Güteverhandlung sowie für weitere Güteversuche vor einen hierfür bestimmten und nicht entscheidungsbefugten Richter (Güterichter) verweisen. Der Güterichter kann alle Methoden der Konfliktbeilegung einschließlich der Mediation einsetzen.
(6) Ein gerichtlicher Vergleich kann auch dadurch geschlossen werden, dass die Parteien dem Gericht einen schriftlichen Vergleichsvorschlag unterbreiten oder einen schriftlichen Vergleichsvorschlag des Gerichts durch Schriftsatz gegenüber dem Gericht annehmen. Das Gericht stellt das Zustandekommen und den Inhalt eines nach Satz 1 geschlossenen Vergleichs durch Beschluss fest. § 164 gilt entsprechend.
§ 278a Mediation, außergerichtliche Konfliktbeilegung
(1) Das Gericht kann den Parteien eine Mediation oder ein anderes Verfahren der außergerichtlichen Konfliktbeilegung vorschlagen.
(2) Entscheiden sich die Parteien zur Durchführung einer Mediation oder eines anderen Verfahrens der außergerichtlichen Konfliktbeilegung, ordnet das Gericht das Ruhen des Verfahrens an.
§ 279 Mündliche Verhandlung
(1) Erscheint eine Partei in der Güteverhandlung nicht oder ist die Güteverhandlung erfolglos, soll sich die mündliche Verhandlung (früher erster Termin oder Haupttermin) unmittelbar anschließen. Andernfalls ist unverzüglich Termin zur mündlichen Verhandlung zu bestimmen.
(2) Im Haupttermin soll der streitigen Verhandlung die Beweisaufnahme unmittelbar folgen.
(3) Im Anschluss an die Beweisaufnahme hat das Gericht erneut den Sach- und Streitstand und, soweit bereits möglich, das Ergebnis der Beweisaufnahme mit den Parteien zu erörtern.
§ 280 Abgesonderte Verhandlung über Zulässigkeit der Klage
(1) Das Gericht kann anordnen, dass über die Zulässigkeit der Klage abgesondert verhandelt wird.
(2) Ergeht ein Zwischenurteil, so ist es in Betreff der Rechtsmittel als Endurteil anzusehen. Das Gericht kann jedoch auf Antrag anordnen, dass zur Hauptsache zu verhandeln ist.
§ 281 Verweisung bei Unzuständigkeit
(1) Ist auf Grund der Vorschriften über die örtliche oder sachliche Zuständigkeit der Gerichte die Unzuständigkeit des Gerichts auszusprechen, so hat das angegangene Gericht, sofern das zuständige Gericht bestimmt werden kann, auf Antrag des Klägers durch Beschluss sich für unzuständig zu erklären und den Rechtsstreit an das zuständige Gericht zu verweisen. Sind mehrere Gerichte zuständig, so erfolgt die Verweisung an das vom Kläger gewählte Gericht.
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(2) Anträge und Erklärungen zur Zuständigkeit des Gerichts können vor dem Urkundsbeamten der Geschäftsstelle abgegeben werden. Der Beschluss ist unanfechtbar. Der Rechtsstreit wird bei dem im Beschluss bezeichneten Gericht mit Eingang der Akten anhängig. Der Beschluss ist für dieses Gericht bindend.
(3) Die im Verfahren vor dem angegangenen Gericht erwachsenen Kosten werden als Teil der Kosten behandelt, die bei dem im Beschluss bezeichneten Gericht erwachsen. Dem Kläger sind die entstandenen Mehrkosten auch dann aufzuerlegen, wenn er in der Hauptsache obsiegt.
§ 282 Rechtzeitigkeit des Vorbringens
(1) Jede Partei hat in der mündlichen Verhandlung ihre Angriffs- und Verteidigungsmittel, insbesondere Behauptungen, Bestreiten, Einwendungen, Einreden, Beweismittel und Beweiseinreden, so zeitig vorzubringen, wie es nach der Prozesslage einer sorgfältigen und auf Förderung des Verfahrens bedachten Prozessführung entspricht.
(2) Anträge sowie Angriffs- und Verteidigungsmittel, auf die der Gegner voraussichtlich ohne vorhergehende Erkundigung keine Erklärung abgeben kann, sind vor der mündlichen Verhandlung durch vorbereitenden Schriftsatz so zeitig mitzuteilen, dass der Gegner die erforderliche Erkundigung noch einzuziehen vermag.
(3) Rügen, die die Zulässigkeit der Klage betreffen, hat der Beklagte gleichzeitig und vor seiner Verhandlung zur Hauptsache vorzubringen. Ist ihm vor der mündlichen Verhandlung eine Frist zur Klageerwiderung gesetzt, so hat er die Rügen schon innerhalb der Frist geltend zu machen.
§ 283 Schriftsatzfrist für Erklärungen zum Vorbringen des Gegners
Kann sich eine Partei in der mündlichen Verhandlung auf ein Vorbringen des Gegners nicht erklären, weil es ihr nicht rechtzeitig vor dem Termin mitgeteilt worden ist, so kann auf ihren Antrag das Gericht eine Frist bestimmen, in der sie die Erklärung in einem Schriftsatz nachbringen kann; gleichzeitig wird ein Termin zur Verkündung einer Entscheidung anberaumt. Eine fristgemäß eingereichte Erklärung muss, eine verspätet eingereichte Erklärung kann das Gericht bei der Entscheidung berücksichtigen.
§ 283a Sicherungsanordnung
(1) Wird eine Räumungsklage mit einer Zahlungsklage aus demselben Rechtsverhältnis verbunden, ordnet das Prozessgericht auf Antrag des Klägers an, dass der Beklagte wegen der Geldforderungen, die nach Rechtshängigkeit der Klage fällig geworden sind, Sicherheit zu leisten hat, soweit 1. die Klage auf diese Forderungen hohe Aussicht auf Erfolg hat und 2. die Anordnung nach Abwägung der beiderseitigen Interessen zur Abwendung besonderer Nachteile für den
Kläger gerechtfertigt ist. Hinsichtlich der abzuwägenden Interessen genügt deren Glaubhaftmachung. Streiten die Parteien um das Recht des Klägers, die Geldforderung zu erhöhen, erfasst die Sicherungsanordnung den Erhöhungsbetrag nicht. Gegen die Entscheidung über die Sicherungsanordnung findet die sofortige Beschwerde statt.
(2) Der Beklagte hat die Sicherheitsleistung binnen einer vom Gericht zu bestimmenden Frist nachzuweisen.
(3) Soweit der Kläger obsiegt, ist in einem Endurteil oder einer anderweitigen den Rechtsstreit beendenden Regelung auszusprechen, dass er berechtigt ist, sich aus der Sicherheit zu befriedigen.
(4) Soweit dem Kläger nach dem Endurteil oder nach der anderweitigen Regelung ein Anspruch in Höhe der Sicherheitsleistung nicht zusteht, hat er den Schaden zu ersetzen, der dem Beklagten durch die Sicherheitsleistung entstanden ist. § 717 Absatz 2 Satz 2 gilt entsprechend.
§ 284 Beweisaufnahme
Die Beweisaufnahme und die Anordnung eines besonderen Beweisaufnahmeverfahrens durch Beweisbeschluss wird durch die Vorschriften des fünften bis elften Titels bestimmt. Mit Einverständnis der Parteien kann das Gericht die Beweise in der ihm geeignet erscheinenden Art aufnehmen. Das Einverständnis kann auf einzelne Beweiserhebungen beschränkt werden. Es kann nur bei einer wesentlichen Änderung der Prozesslage vor Beginn der Beweiserhebung, auf die es sich bezieht, widerrufen werden.
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§ 285 Verhandlung nach Beweisaufnahme
(1) Über das Ergebnis der Beweisaufnahme haben die Parteien unter Darlegung des Streitverhältnisses zu verhandeln.
(2) Ist die Beweisaufnahme nicht vor dem Prozessgericht erfolgt, so haben die Parteien ihr Ergebnis auf Grund der Beweisverhandlungen vorzutragen.
§ 286 Freie Beweiswürdigung
(1) Das Gericht hat unter Berücksichtigung des gesamten Inhalts der Verhandlungen und des Ergebnisses einer etwaigen Beweisaufnahme nach freier Überzeugung zu entscheiden, ob eine tatsächliche Behauptung für wahr oder für nicht wahr zu erachten sei. In dem Urteil sind die Gründe anzugeben, die für die richterliche Überzeugung leitend gewesen sind.
(2) An gesetzliche Beweisregeln ist das Gericht nur in den durch dieses Gesetz bezeichneten Fällen gebunden.
§ 287 Schadensermittlung; Höhe der Forderung
(1) Ist unter den Parteien streitig, ob ein Schaden entstanden sei und wie hoch sich der Schaden oder ein zu ersetzendes Interesse belaufe, so entscheidet hierüber das Gericht unter Würdigung aller Umstände nach freier Überzeugung. Ob und inwieweit eine beantragte Beweisaufnahme oder von Amts wegen die Begutachtung durch Sachverständige anzuordnen sei, bleibt dem Ermessen des Gerichts überlassen. Das Gericht kann den Beweisführer über den Schaden oder das Interesse vernehmen; die Vorschriften des § 452 Abs. 1 Satz 1, Abs. 2 bis 4 gelten entsprechend.
(2) Die Vorschriften des Absatzes 1 Satz 1, 2 sind bei vermögensrechtlichen Streitigkeiten auch in anderen Fällen entsprechend anzuwenden, soweit unter den Parteien die Höhe einer Forderung streitig ist und die vollständige Aufklärung aller hierfür maßgebenden Umstände mit Schwierigkeiten verbunden ist, die zu der Bedeutung des streitigen Teiles der Forderung in keinem Verhältnis stehen.
§ 288 Gerichtliches Geständnis
(1) Die von einer Partei behaupteten Tatsachen bedürfen insoweit keines Beweises, als sie im Laufe des Rechtsstreits von dem Gegner bei einer mündlichen Verhandlung oder zum Protokoll eines beauftragten oder ersuchten Richters zugestanden sind.
(2) Zur Wirksamkeit des gerichtlichen Geständnisses ist dessen Annahme nicht erforderlich.
§ 289 Zusätze beim Geständnis
(1) Die Wirksamkeit des gerichtlichen Geständnisses wird dadurch nicht beeinträchtigt, dass ihm eine Behauptung hinzugefügt wird, die ein selbständiges Angriffs- oder Verteidigungsmittel enthält.
(2) Inwiefern eine vor Gericht erfolgte einräumende Erklärung ungeachtet anderer zusätzlicher oder einschränkender Behauptungen als ein Geständnis anzusehen sei, bestimmt sich nach der Beschaffenheit des einzelnen Falles.
§ 290 Widerruf des Geständnisses
Der Widerruf hat auf die Wirksamkeit des gerichtlichen Geständnisses nur dann Einfluss, wenn die widerrufende Partei beweist, dass das Geständnis der Wahrheit nicht entspreche und durch einen Irrtum veranlasst sei. In diesem Fall verliert das Geständnis seine Wirksamkeit.
§ 291 Offenkundige Tatsachen
Tatsachen, die bei dem Gericht offenkundig sind, bedürfen keines Beweises.
§ 292 Gesetzliche Vermutungen
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Stellt das Gesetz für das Vorhandensein einer Tatsache eine Vermutung auf, so ist der Beweis des Gegenteils zulässig, sofern nicht das Gesetz ein anderes vorschreibt. Dieser Beweis kann auch durch den Antrag auf Parteivernehmung nach § 445 geführt werden.
§ 292a
(weggefallen)
§ 293 Fremdes Recht; Gewohnheitsrecht; Statuten
Das in einem anderen Staat geltende Recht, die Gewohnheitsrechte und Statuten bedürfen des Beweises nur insofern, als sie dem Gericht unbekannt sind. Bei Ermittlung dieser Rechtsnormen ist das Gericht auf die von den Parteien beigebrachten Nachweise nicht beschränkt; es ist befugt, auch andere Erkenntnisquellen zu benutzen und zum Zwecke einer solchen Benutzung das Erforderliche anzuordnen.
§ 294 Glaubhaftmachung
(1) Wer eine tatsächliche Behauptung glaubhaft zu machen hat, kann sich aller Beweismittel bedienen, auch zur Versicherung an Eides statt zugelassen werden.
(2) Eine Beweisaufnahme, die nicht sofort erfolgen kann, ist unstatthaft.
§ 295 Verfahrensrügen
(1) Die Verletzung einer das Verfahren und insbesondere die Form einer Prozesshandlung betreffenden Vorschrift kann nicht mehr gerügt werden, wenn die Partei auf die Befolgung der Vorschrift verzichtet, oder wenn sie bei der nächsten mündlichen Verhandlung, die auf Grund des betreffenden Verfahrens stattgefunden hat oder in der darauf Bezug genommen ist, den Mangel nicht gerügt hat, obgleich sie erschienen und ihr der Mangel bekannt war oder bekannt sein musste.
(2) Die vorstehende Bestimmung ist nicht anzuwenden, wenn Vorschriften verletzt sind, auf deren Befolgung eine Partei wirksam nicht verzichten kann.
§ 296 Zurückweisung verspäteten Vorbringens
(1) Angriffs- und Verteidigungsmittel, die erst nach Ablauf einer hierfür gesetzten Frist (§ 273 Abs. 2 Nr. 1 und, soweit die Fristsetzung gegenüber einer Partei ergeht, 5, § 275 Abs. 1 Satz 1, Abs. 3, 4, § 276 Abs. 1 Satz 2, Abs. 3, § 277) vorgebracht werden, sind nur zuzulassen, wenn nach der freien Überzeugung des Gerichts ihre Zulassung die Erledigung des Rechtsstreits nicht verzögern würde oder wenn die Partei die Verspätung genügend entschuldigt.
(2) Angriffs- und Verteidigungsmittel, die entgegen § 282 Abs. 1 nicht rechtzeitig vorgebracht oder entgegen § 282 Abs. 2 nicht rechtzeitig mitgeteilt werden, können zurückgewiesen werden, wenn ihre Zulassung nach der freien Überzeugung des Gerichts die Erledigung des Rechtsstreits verzögern würde und die Verspätung auf grober Nachlässigkeit beruht.
(3) Verspätete Rügen, die die Zulässigkeit der Klage betreffen und auf die der Beklagte verzichten kann, sind nur zuzulassen, wenn der Beklagte die Verspätung genügend entschuldigt.
(4) In den Fällen der Absätze 1 und 3 ist der Entschuldigungsgrund auf Verlangen des Gerichts glaubhaft zu machen.
§ 296a Vorbringen nach Schluss der mündlichen Verhandlung
Nach Schluss der mündlichen Verhandlung, auf die das Urteil ergeht, können Angriffs- und Verteidigungsmittel nicht mehr vorgebracht werden. § 139 Abs. 5, §§ 156, 283 bleiben unberührt.
§ 297 Form der Antragstellung
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(1) Die Anträge sind aus den vorbereitenden Schriftsätzen zu verlesen. Soweit sie darin nicht enthalten sind, müssen sie aus einer dem Protokoll als Anlage beizufügenden Schrift verlesen werden. Der Vorsitzende kann auch gestatten, dass die Anträge zu Protokoll erklärt werden.
(2) Die Verlesung kann dadurch ersetzt werden, dass die Parteien auf die Schriftsätze Bezug nehmen, die die Anträge enthalten.
§ 298 Aktenausdruck
(1) Von einem elektronischen Dokument (§§ 130a, 130b) kann ein Ausdruck für die Akten gefertigt werden.
(2) Der Ausdruck muss den Vermerk enthalten, 1. welches Ergebnis die Integritätsprüfung des Dokumentes ausweist, 2. wen die Signaturprüfung als Inhaber der Signatur ausweist, 3. welchen Zeitpunkt die Signaturprüfung für die Anbringung der Signatur ausweist.
(3) Das elektronische Dokument ist mindestens bis zum rechtskräftigen Abschluss des Verfahrens zu speichern.
§ 298a Elektronische Akte
(1) Die Prozessakten können elektronisch geführt werden. Die Bundesregierung und die Landesregierungen bestimmen für ihren Bereich durch Rechtsverordnung den Zeitpunkt, von dem an elektronische Akten geführt werden sowie die hierfür geltenden organisatorisch-technischen Rahmenbedingungen für die Bildung, Führung und Aufbewahrung der elektronischen Akten. Die Landesregierungen können die Ermächtigung durch Rechtsverordnung auf die Landesjustizverwaltungen übertragen. Die Zulassung der elektronischen Akte kann auf einzelne Gerichte oder Verfahren beschränkt werden.
(2) In Papierform eingereichte Schriftstücke und sonstige Unterlagen sollen zur Ersetzung der Urschrift in ein elektronisches Dokument übertragen werden. Die Unterlagen sind, sofern sie in Papierform weiter benötigt werden, mindestens bis zum rechtskräftigen Abschluss des Verfahrens aufzubewahren.
(3) Das elektronische Dokument muss den Vermerk enthalten, wann und durch wen die Unterlagen in ein elektronisches Dokument übertragen worden sind.
§ 299 Akteneinsicht; Abschriften
(1) Die Parteien können die Prozessakten einsehen und sich aus ihnen durch die Geschäftsstelle Ausfertigungen, Auszüge und Abschriften erteilen lassen.
(2) Dritten Personen kann der Vorstand des Gerichts ohne Einwilligung der Parteien die Einsicht der Akten nur gestatten, wenn ein rechtliches Interesse glaubhaft gemacht wird.
(3) Werden die Prozessakten elektronisch geführt, gewährt die Geschäftsstelle Akteneinsicht durch Erteilung eines Aktenausdrucks, durch Wiedergabe auf einem Bildschirm oder Übermittlung von elektronischen Dokumenten. Nach dem Ermessen des Vorsitzenden kann Bevollmächtigten, die Mitglied einer Rechtsanwaltskammer sind, der elektronische Zugriff auf den Inhalt der Akten gestattet werden. Bei einem elektronischen Zugriff auf den Inhalt der Akten ist sicherzustellen, dass der Zugriff nur durch den Bevollmächtigten erfolgt. Für die Übermittlung ist die Gesamtheit der Dokumente mit einer qualifizierten elektronischen Signatur zu versehen und gegen unbefugte Kenntnisnahme zu schützen.
(4) Die Entwürfe zu Urteilen, Beschlüssen und Verfügungen, die zu ihrer Vorbereitung gelieferten Arbeiten sowie die Dokumente, die Abstimmungen betreffen, werden weder vorgelegt noch abschriftlich mitgeteilt.
§ 299a Datenträgerarchiv
Sind die Prozessakten nach ordnungsgemäßen Grundsätzen zur Ersetzung der Urschrift auf einen Bild- oder anderen Datenträger übertragen worden und liegt der schriftliche Nachweis darüber vor, dass die Wiedergabe mit der Urschrift übereinstimmt, so können Ausfertigungen, Auszüge und Abschriften von dem Bild- oder dem Datenträger erteilt werden. Auf der Urschrift anzubringende Vermerke werden in diesem Fall bei dem Nachweis angebracht.
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Titel 2 Urteil § 300 Endurteil
(1) Ist der Rechtsstreit zur Endentscheidung reif, so hat das Gericht sie durch Endurteil zu erlassen.
(2) Das Gleiche gilt, wenn von mehreren zum Zwecke gleichzeitiger Verhandlung und Entscheidung verbundenen Prozessen nur der eine zur Endentscheidung reif ist.
§ 301 Teilurteil
(1) Ist von mehreren in einer Klage geltend gemachten Ansprüchen nur der eine oder ist nur ein Teil eines Anspruchs oder bei erhobener Widerklage nur die Klage oder die Widerklage zur Endentscheidung reif, so hat das Gericht sie durch Endurteil (Teilurteil) zu erlassen. Über einen Teil eines einheitlichen Anspruchs, der nach Grund und Höhe streitig ist, kann durch Teilurteil nur entschieden werden, wenn zugleich ein Grundurteil über den restlichen Teil des Anspruchs ergeht.
(2) Der Erlass eines Teilurteils kann unterbleiben, wenn es das Gericht nach Lage der Sache nicht für angemessen erachtet.
§ 302 Vorbehaltsurteil
(1) Hat der Beklagte die Aufrechnung einer Gegenforderung geltend gemacht, so kann, wenn nur die Verhandlung über die Forderung zur Entscheidung reif ist, diese unter Vorbehalt der Entscheidung über die Aufrechnung ergehen.
(2) Enthält das Urteil keinen Vorbehalt, so kann die Ergänzung des Urteils nach Vorschrift des § 321 beantragt werden.
(3) Das Urteil, das unter Vorbehalt der Entscheidung über die Aufrechnung ergeht, ist in Betreff der Rechtsmittel und der Zwangsvollstreckung als Endurteil anzusehen.
(4) In Betreff der Aufrechnung, über welche die Entscheidung vorbehalten ist, bleibt der Rechtsstreit anhängig. Soweit sich in dem weiteren Verfahren ergibt, dass der Anspruch des Klägers unbegründet war, ist das frühere Urteil aufzuheben, der Kläger mit dem Anspruch abzuweisen und über die Kosten anderweit zu entscheiden. Der Kläger ist zum Ersatz des Schadens verpflichtet, der dem Beklagten durch die Vollstreckung des Urteils oder durch eine zur Abwendung der Vollstreckung gemachte Leistung entstanden ist. Der Beklagte kann den Anspruch auf Schadensersatz in dem anhängigen Rechtsstreit geltend machen; wird der Anspruch geltend gemacht, so ist er als zur Zeit der Zahlung oder Leistung rechtshängig geworden anzusehen.
§ 303 Zwischenurteil
Ist ein Zwischenstreit zur Entscheidung reif, so kann die Entscheidung durch Zwischenurteil ergehen.
§ 304 Zwischenurteil über den Grund
(1) Ist ein Anspruch nach Grund und Betrag streitig, so kann das Gericht über den Grund vorab entscheiden.
(2) Das Urteil ist in Betreff der Rechtsmittel als Endurteil anzusehen; das Gericht kann jedoch, wenn der Anspruch für begründet erklärt ist, auf Antrag anordnen, dass über den Betrag zu verhandeln sei.
§ 305 Urteil unter Vorbehalt erbrechtlich beschränkter Haftung
(1) Durch die Geltendmachung der dem Erben nach den §§ 2014, 2015 des Bürgerlichen Gesetzbuchs zustehenden Einreden wird eine unter dem Vorbehalt der beschränkten Haftung ergehende Verurteilung des Erben nicht ausgeschlossen.
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(2) Das Gleiche gilt für die Geltendmachung der Einreden, die im Falle der fortgesetzten Gütergemeinschaft dem überlebenden Ehegatten nach dem § 1489 Abs. 2 und den §§ 2014, 2015 des Bürgerlichen Gesetzbuchs zustehen.
§ 305a Urteil unter Vorbehalt seerechtlich beschränkter Haftung
(1) Unterliegt der in der Klage geltend gemachte Anspruch der Haftungsbeschränkung nach § 611 Absatz 1 oder 3, §§ 612 bis 616 des Handelsgesetzbuchs und macht der Beklagte geltend, dass 1. aus demselben Ereignis weitere Ansprüche, für die er die Haftung beschränken kann, entstanden sind und 2. die Summe der Ansprüche die Haftungshöchstbeträge übersteigt, die für diese Ansprüche in Artikel 6 oder 7
des Haftungsbeschränkungsübereinkommens (§ 611 Absatz 1 Satz 1 des Handelsgesetzbuchs) oder in den §§ 612, 613 oder 615 des Handelsgesetzbuchs bestimmt sind,
so kann das Gericht das Recht auf Beschränkung der Haftung bei der Entscheidung unberücksichtigt lassen, wenn die Erledigung des Rechtsstreits wegen Ungewissheit über Grund oder Betrag der weiteren Ansprüche nach der freien Überzeugung des Gerichts nicht unwesentlich erschwert wäre. Das Gleiche gilt, wenn der in der Klage geltend gemachte Anspruch der Haftungsbeschränkung nach den §§ 4 bis 5m des Binnenschifffahrtsgesetzes unterliegt und der Beklagte geltend macht, dass aus demselben Ereignis weitere Ansprüche entstanden sind, für die er die Haftung beschränken kann und die in ihrer Summe die für sie in den §§ 5e bis 5k des Binnenschifffahrtsgesetzes bestimmten Haftungshöchstbeträge übersteigen.
(2) Lässt das Gericht das Recht auf Beschränkung der Haftung unberücksichtigt, so ergeht das Urteil 1. im Falle des Absatzes 1 Satz 1 unter dem Vorbehalt, dass der Beklagte das Recht auf Beschränkung der
Haftung geltend machen kann, wenn ein Fonds nach dem Haftungsbeschränkungsübereinkommen errichtet worden ist oder bei Geltendmachung des Rechts auf Beschränkung der Haftung errichtet wird,
2. im Falle des Absatzes 1 Satz 2 unter dem Vorbehalt, dass der Beklagte das Recht auf Beschränkung der Haftung geltend machen kann, wenn ein Fonds nach § 5d des Binnenschifffahrtsgesetzes errichtet worden ist oder bei Geltendmachung des Rechts auf Beschränkung der Haftung errichtet wird.
§ 306 Verzicht
Verzichtet der Kläger bei der mündlichen Verhandlung auf den geltend gemachten Anspruch, so ist er auf Grund des Verzichts mit dem Anspruch abzuweisen, wenn der Beklagte die Abweisung beantragt.
§ 307 Anerkenntnis
Erkennt eine Partei den gegen sie geltend gemachten Anspruch ganz oder zum Teil an, so ist sie dem Anerkenntnis gemäß zu verurteilen. Einer mündlichen Verhandlung bedarf es insoweit nicht.
§ 308 Bindung an die Parteianträge
(1) Das Gericht ist nicht befugt, einer Partei etwas zuzusprechen, was nicht beantragt ist. Dies gilt insbesondere von Früchten, Zinsen und anderen Nebenforderungen.
(2) Über die Verpflichtung, die Prozesskosten zu tragen, hat das Gericht auch ohne Antrag zu erkennen.
§ 308a Entscheidung ohne Antrag in Mietsachen
(1) Erachtet das Gericht in einer Streitigkeit zwischen dem Vermieter und dem Mieter oder dem Mieter und dem Untermieter wegen Räumung von Wohnraum den Räumungsanspruch für unbegründet, weil der Mieter nach den §§ 574 bis 574b des Bürgerlichen Gesetzbuchs eine Fortsetzung des Mietverhältnisses verlangen kann, so hat es in dem Urteil auch ohne Antrag auszusprechen, für welche Dauer und unter welchen Änderungen der Vertragsbedingungen das Mietverhältnis fortgesetzt wird. Vor dem Ausspruch sind die Parteien zu hören.
(2) Der Ausspruch ist selbständig anfechtbar.
§ 309 Erkennende Richter
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Das Urteil kann nur von denjenigen Richtern gefällt werden, welche der dem Urteil zugrunde liegenden Verhandlung beigewohnt haben.
§ 310 Termin der Urteilsverkündung
(1) Das Urteil wird in dem Termin, in dem die mündliche Verhandlung geschlossen wird, oder in einem sofort anzuberaumenden Termin verkündet. Dieser wird nur dann über drei Wochen hinaus angesetzt, wenn wichtige Gründe, insbesondere der Umfang oder die Schwierigkeit der Sache, dies erfordern.
(2) Wird das Urteil nicht in dem Termin, in dem die mündliche Verhandlung geschlossen wird, verkündet, so muss es bei der Verkündung in vollständiger Form abgefasst sein.
(3) Bei einem Anerkenntnisurteil und einem Versäumnisurteil, die nach §§ 307, 331 Abs. 3 ohne mündliche Verhandlung ergehen, wird die Verkündung durch die Zustellung des Urteils ersetzt. Dasselbe gilt bei einem Urteil, das den Einspruch gegen ein Versäumnisurteil verwirft (§ 341 Abs. 2).
§ 311 Form der Urteilsverkündung
(1) Das Urteil ergeht im Namen des Volkes.
(2) Das Urteil wird durch Vorlesung der Urteilsformel verkündet. Die Vorlesung der Urteilsformel kann durch eine Bezugnahme auf die Urteilsformel ersetzt werden, wenn bei der Verkündung von den Parteien niemand erschienen ist. Versäumnisurteile, Urteile, die auf Grund eines Anerkenntnisses erlassen werden, sowie Urteile, welche die Folge der Zurücknahme der Klage oder des Verzichts auf den Klageanspruch aussprechen, können verkündet werden, auch wenn die Urteilsformel noch nicht schriftlich abgefasst ist.
(3) Die Entscheidungsgründe werden, wenn es für angemessen erachtet wird, durch Vorlesung der Gründe oder durch mündliche Mitteilung des wesentlichen Inhalts verkündet.
(4) Wird das Urteil nicht in dem Termin verkündet, in dem die mündliche Verhandlung geschlossen wird, so kann es der Vorsitzende in Abwesenheit der anderen Mitglieder des Prozessgerichts verkünden.
§ 312 Anwesenheit der Parteien
(1) Die Wirksamkeit der Verkündung eines Urteils ist von der Anwesenheit der Parteien nicht abhängig. Die Verkündung gilt auch derjenigen Partei gegenüber als bewirkt, die den Termin versäumt hat.
(2) Die Befugnis einer Partei, auf Grund eines verkündeten Urteils das Verfahren fortzusetzen oder von dem Urteil in anderer Weise Gebrauch zu machen, ist von der Zustellung an den Gegner nicht abhängig, soweit nicht dieses Gesetz ein anderes bestimmt.
§ 313 Form und Inhalt des Urteils
(1) Das Urteil enthält: 1. die Bezeichnung der Parteien, ihrer gesetzlichen Vertreter und der Prozessbevollmächtigten; 2. die Bezeichnung des Gerichts und die Namen der Richter, die bei der Entscheidung mitgewirkt haben; 3. den Tag, an dem die mündliche Verhandlung geschlossen worden ist; 4. die Urteilsformel; 5. den Tatbestand; 6. die Entscheidungsgründe.
(2) Im Tatbestand sollen die erhobenen Ansprüche und die dazu vorgebrachten Angriffs- und Verteidigungsmittel unter Hervorhebung der gestellten Anträge nur ihrem wesentlichen Inhalt nach knapp dargestellt werden. Wegen der Einzelheiten des Sach- und Streitstandes soll auf Schriftsätze, Protokolle und andere Unterlagen verwiesen werden.
(3) Die Entscheidungsgründe enthalten eine kurze Zusammenfassung der Erwägungen, auf denen die Entscheidung in tatsächlicher und rechtlicher Hinsicht beruht.
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§ 313a Weglassen von Tatbestand und Entscheidungsgründen
(1) Des Tatbestandes bedarf es nicht, wenn ein Rechtsmittel gegen das Urteil unzweifelhaft nicht zulässig ist. In diesem Fall bedarf es auch keiner Entscheidungsgründe, wenn die Parteien auf sie verzichten oder wenn ihr wesentlicher Inhalt in das Protokoll aufgenommen worden ist.
(2) Wird das Urteil in dem Termin, in dem die mündliche Verhandlung geschlossen worden ist, verkündet, so bedarf es des Tatbestands und der Entscheidungsgründe nicht, wenn beide Parteien auf Rechtsmittel gegen das Urteil verzichten. Ist das Urteil nur für eine Partei anfechtbar, so genügt es, wenn diese verzichtet.
(3) Der Verzicht nach Absatz 1 oder 2 kann bereits vor der Verkündung des Urteils erfolgen; er muss spätestens binnen einer Woche nach dem Schluss der mündlichen Verhandlung gegenüber dem Gericht erklärt sein.
(4) Die Absätze 1 bis 3 sind nicht anzuwenden im Fall der Verurteilung zu künftig fällig werdenden wiederkehrenden Leistungen oder wenn zu erwarten ist, dass das Urteil im Ausland geltend gemacht werden wird.
(5) Soll ein ohne Tatbestand und Entscheidungsgründe hergestelltes Urteil im Ausland geltend gemacht werden, so gelten die Vorschriften über die Vervollständigung von Versäumnis- und Anerkenntnisurteilen entsprechend.
§ 313b Versäumnis-, Anerkenntnis- und Verzichtsurteil
(1) Wird durch Versäumnisurteil, Anerkenntnisurteil oder Verzichtsurteil erkannt, so bedarf es nicht des Tatbestandes und der Entscheidungsgründe. Das Urteil ist als Versäumnis-, Anerkenntnis- oder Verzichtsurteil zu bezeichnen.
(2) Das Urteil kann in abgekürzter Form nach Absatz 1 auf die bei den Akten befindliche Urschrift oder Abschrift der Klage oder auf ein damit zu verbindendes Blatt gesetzt werden. Die Namen der Richter braucht das Urteil nicht zu enthalten. Die Bezeichnung der Parteien, ihrer gesetzlichen Vertreter und der Prozessbevollmächtigten sind in das Urteil nur aufzunehmen, soweit von den Angaben der Klageschrift abgewichen wird. Wird nach dem Antrag des Klägers erkannt, so kann in der Urteilsformel auf die Klageschrift Bezug genommen werden. Wird das Urteil auf ein Blatt gesetzt, das mit der Klageschrift verbunden wird, so soll die Verbindungsstelle mit dem Gerichtssiegel versehen oder die Verbindung mit Schnur und Siegel bewirkt werden.
(3) Absatz 1 ist nicht anzuwenden, wenn zu erwarten ist, dass das Versäumnisurteil oder das Anerkenntnisurteil im Ausland geltend gemacht werden soll.
(4) Absatz 2 ist nicht anzuwenden, wenn die Prozessakten elektronisch geführt werden.
§ 314 Beweiskraft des Tatbestandes
Der Tatbestand des Urteils liefert Beweis für das mündliche Parteivorbringen. Der Beweis kann nur durch das Sitzungsprotokoll entkräftet werden.
§ 315 Unterschrift der Richter
(1) Das Urteil ist von den Richtern, die bei der Entscheidung mitgewirkt haben, zu unterschreiben. Ist ein Richter verhindert, seine Unterschrift beizufügen, so wird dies unter Angabe des Verhinderungsgrundes von dem Vorsitzenden und bei dessen Verhinderung von dem ältesten beisitzenden Richter unter dem Urteil vermerkt.
(2) Ein Urteil, das in dem Termin, in dem die mündliche Verhandlung geschlossen wird, verkündet wird, ist vor Ablauf von drei Wochen, vom Tage der Verkündung an gerechnet, vollständig abgefasst der Geschäftsstelle zu übermitteln. Kann dies ausnahmsweise nicht geschehen, so ist innerhalb dieser Frist das von den Richtern unterschriebene Urteil ohne Tatbestand und Entscheidungsgründe der Geschäftsstelle zu übermitteln. In diesem Fall sind Tatbestand und Entscheidungsgründe alsbald nachträglich anzufertigen, von den Richtern besonders zu unterschreiben und der Geschäftsstelle zu übermitteln.
(3) Der Urkundsbeamte der Geschäftsstelle hat auf dem Urteil den Tag der Verkündung oder der Zustellung nach § 310 Abs. 3 zu vermerken und diesen Vermerk zu unterschreiben. Werden die Prozessakten elektronisch geführt, hat der Urkundsbeamte der Geschäftsstelle den Vermerk in einem gesonderten Dokument festzuhalten. Das Dokument ist mit dem Urteil untrennbar zu verbinden.
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§ 316
(weggefallen)
§ 317 Urteilszustellung und -ausfertigung
(1) Die Urteile werden den Parteien, verkündete Versäumnisurteile nur der unterliegenden Partei zugestellt. Eine Zustellung nach § 310 Abs. 3 genügt. Auf übereinstimmenden Antrag der Parteien kann der Vorsitzende die Zustellung verkündeter Urteile bis zum Ablauf von fünf Monaten nach der Verkündung hinausschieben.
(2) Solange das Urteil nicht verkündet und nicht unterschrieben ist, dürfen von ihm Ausfertigungen, Auszüge und Abschriften nicht erteilt werden. Die von einer Partei beantragte Ausfertigung eines Urteils erfolgt ohne Tatbestand und Entscheidungsgründe; dies gilt nicht, wenn die Partei eine vollständige Ausfertigung beantragt.
(3) Ausfertigungen, Auszüge und Abschriften eines als elektronisches Dokument (§ 130b) vorliegenden Urteils können von einem Urteilsausdruck gemäß § 298 erteilt werden.
(4) Die Ausfertigung und Auszüge der Urteile sind von dem Urkundsbeamten der Geschäftsstelle zu unterschreiben und mit dem Gerichtssiegel zu versehen.
(5) Ausfertigungen, Auszüge und Abschriften eines in Papierform vorliegenden Urteils können durch Telekopie oder als elektronisches Dokument (§ 130b) erteilt werden. Die Telekopie hat eine Wiedergabe der Unterschrift des Urkundsbeamten der Geschäftsstelle sowie des Gerichtssiegels zu enthalten. Das elektronische Dokument ist mit einer qualifizierten elektronischen Signatur des Urkundsbeamten der Geschäftsstelle zu versehen.
(6) Ist das Urteil nach § 313b Abs. 2 in abgekürzter Form hergestellt, so erfolgt die Ausfertigung in gleicher Weise unter Benutzung einer beglaubigten Abschrift der Klageschrift oder in der Weise, dass das Urteil durch Aufnahme der in § 313 Abs. 1 Nr. 1 bis 4 bezeichneten Angaben vervollständigt wird. Die Abschrift der Klageschrift kann durch den Urkundsbeamten der Geschäftsstelle oder durch den Rechtsanwalt des Klägers beglaubigt werden.
§ 318 Bindung des Gerichts
Das Gericht ist an die Entscheidung, die in den von ihm erlassenen End- und Zwischenurteilen enthalten ist, gebunden.
§ 319 Berichtigung des Urteils
(1) Schreibfehler, Rechnungsfehler und ähnliche offenbare Unrichtigkeiten, die in dem Urteil vorkommen, sind jederzeit von dem Gericht auch von Amts wegen zu berichtigen.
(2) Der Beschluss, der eine Berichtigung ausspricht, wird auf dem Urteil und den Ausfertigungen vermerkt. Erfolgt der Berichtigungsbeschluss in der Form des § 130b, ist er in einem gesonderten elektronischen Dokument festzuhalten. Das Dokument ist mit dem Urteil untrennbar zu verbinden.
(3) Gegen den Beschluss, durch den der Antrag auf Berichtigung zurückgewiesen wird, findet kein Rechtsmittel, gegen den Beschluss, der eine Berichtigung ausspricht, findet sofortige Beschwerde statt.
§ 320 Berichtigung des Tatbestandes
(1) Enthält der Tatbestand des Urteils Unrichtigkeiten, die nicht unter die Vorschriften des vorstehenden Paragraphen fallen, Auslassungen, Dunkelheiten oder Widersprüche, so kann die Berichtigung binnen einer zweiwöchigen Frist durch Einreichung eines Schriftsatzes beantragt werden.
(2) Die Frist beginnt mit der Zustellung des in vollständiger Form abgefassten Urteils. Der Antrag kann schon vor dem Beginn der Frist gestellt werden. Die Berichtigung des Tatbestandes ist ausgeschlossen, wenn sie nicht binnen drei Monaten seit der Verkündung des Urteils beantragt wird.
(3) Über den Antrag ist mündlich zu verhandeln, wenn eine Partei dies beantragt.
(4) Das Gericht entscheidet ohne Beweisaufnahme. Bei der Entscheidung wirken nur diejenigen Richter mit, die bei dem Urteil mitgewirkt haben. Ist ein Richter verhindert, so gibt bei Stimmengleichheit die Stimme des
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Vorsitzenden und bei dessen Verhinderung die Stimme des ältesten Richters den Ausschlag. Eine Anfechtung des Beschlusses findet nicht statt. Der Beschluss, der eine Berichtigung ausspricht, wird auf dem Urteil und den Ausfertigungen vermerkt. Erfolgt der Berichtigungsbeschluss in der Form des § 130b, ist er in einem gesonderten elektronischen Dokument festzuhalten. Das Dokument ist mit dem Urteil untrennbar zu verbinden.
(5) Die Berichtigung des Tatbestandes hat eine Änderung des übrigen Teils des Urteils nicht zur Folge.
§ 321 Ergänzung des Urteils
(1) Wenn ein nach dem ursprünglich festgestellten oder nachträglich berichtigten Tatbestand von einer Partei geltend gemachter Haupt- oder Nebenanspruch oder wenn der Kostenpunkt bei der Endentscheidung ganz oder teilweise übergangen ist, so ist auf Antrag das Urteil durch nachträgliche Entscheidung zu ergänzen.
(2) Die nachträgliche Entscheidung muss binnen einer zweiwöchigen Frist, die mit der Zustellung des Urteils beginnt, durch Einreichung eines Schriftsatzes beantragt werden.
(3) Auf den Antrag ist ein Termin zur mündlichen Verhandlung anzuberaumen. Dem Gegner des Antragstellers ist mit der Ladung zu diesem Termin der den Antrag enthaltende Schriftsatz zuzustellen.
(4) Die mündliche Verhandlung hat nur den nicht erledigten Teil des Rechtsstreits zum Gegenstand.
§ 321a Abhilfe bei Verletzung des Anspruchs auf rechtliches Gehör
(1) Auf die Rüge der durch die Entscheidung beschwerten Partei ist das Verfahren fortzuführen, wenn 1. ein Rechtsmittel oder ein anderer Rechtsbehelf gegen die Entscheidung nicht gegeben ist und 2. das Gericht den Anspruch dieser Partei auf rechtliches Gehör in entscheidungserheblicher Weise verletzt hat. Gegen eine der Endentscheidung vorausgehende Entscheidung findet die Rüge nicht statt.
(2) Die Rüge ist innerhalb einer Notfrist von zwei Wochen nach Kenntnis von der Verletzung des rechtlichen Gehörs zu erheben; der Zeitpunkt der Kenntniserlangung ist glaubhaft zu machen. Nach Ablauf eines Jahres seit Bekanntgabe der angegriffenen Entscheidung kann die Rüge nicht mehr erhoben werden. Formlos mitgeteilte Entscheidungen gelten mit dem dritten Tage nach Aufgabe zur Post als bekannt gegeben. Die Rüge ist schriftlich bei dem Gericht zu erheben, dessen Entscheidung angegriffen wird. Die Rüge muss die angegriffene Entscheidung bezeichnen und das Vorliegen der in Absatz 1 Satz 1 Nr. 2 genannten Voraussetzungen darlegen.
(3) Dem Gegner ist, soweit erforderlich, Gelegenheit zur Stellungnahme zu geben.
(4) Das Gericht hat von Amts wegen zu prüfen, ob die Rüge an sich statthaft und ob sie in der gesetzlichen Form und Frist erhoben ist. Mangelt es an einem dieser Erfordernisse, so ist die Rüge als unzulässig zu verwerfen. Ist die Rüge unbegründet, weist das Gericht sie zurück. Die Entscheidung ergeht durch unanfechtbaren Beschluss. Der Beschluss soll kurz begründet werden.
(5) Ist die Rüge begründet, so hilft ihr das Gericht ab, indem es das Verfahren fortführt, soweit dies auf Grund der Rüge geboten ist. Das Verfahren wird in die Lage zurückversetzt, in der es sich vor dem Schluss der mündlichen Verhandlung befand. § 343 gilt entsprechend. In schriftlichen Verfahren tritt an die Stelle des Schlusses der mündlichen Verhandlung der Zeitpunkt, bis zu dem Schriftsätze eingereicht werden können.
§ 322 Materielle Rechtskraft
(1) Urteile sind der Rechtskraft nur insoweit fähig, als über den durch die Klage oder durch die Widerklage erhobenen Anspruch entschieden ist.
(2) Hat der Beklagte die Aufrechnung einer Gegenforderung geltend gemacht, so ist die Entscheidung, dass die Gegenforderung nicht besteht, bis zur Höhe des Betrages, für den die Aufrechnung geltend gemacht worden ist, der Rechtskraft fähig.
§ 323 Abänderung von Urteilen
(1) Enthält ein Urteil eine Verpflichtung zu künftig fällig werdenden wiederkehrenden Leistungen, kann jeder Teil die Abänderung beantragen. Die Klage ist nur zulässig, wenn der Kläger Tatsachen vorträgt, aus denen sich eine
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wesentliche Veränderung der der Entscheidung zugrunde liegenden tatsächlichen oder rechtlichen Verhältnisse ergibt.
(2) Die Klage kann nur auf Gründe gestützt werden, die nach Schluss der Tatsachenverhandlung des vorausgegangenen Verfahrens entstanden sind und deren Geltendmachung durch Einspruch nicht möglich ist oder war.
(3) Die Abänderung ist zulässig für die Zeit ab Rechtshängigkeit der Klage.
(4) Liegt eine wesentliche Veränderung der tatsächlichen oder rechtlichen Verhältnisse vor, ist die Entscheidung unter Wahrung ihrer Grundlagen anzupassen.
§ 323a Abänderung von Vergleichen und Urkunden
(1) Enthält ein Vergleich nach § 794 Abs. 1 Nr. 1 oder eine vollstreckbare Urkunde eine Verpflichtung zu künftig fällig werdenden wiederkehrenden Leistungen, kann jeder Teil auf Abänderung des Titels klagen. Die Klage ist nur zulässig, wenn der Kläger Tatsachen vorträgt, die die Abänderung rechtfertigen.
(2) Die weiteren Voraussetzungen und der Umfang der Abänderung richten sich nach den Vorschriften des bürgerlichen Rechts.
§ 323b Verschärfte Haftung
Die Rechtshängigkeit einer auf Herabsetzung gerichteten Abänderungsklage steht bei der Anwendung des § 818 Abs. 4 des Bürgerlichen Gesetzbuchs der Rechtshängigkeit einer Klage auf Rückzahlung der geleisteten Beträge gleich.
§ 324 Nachforderungsklage zur Sicherheitsleistung
Ist bei einer nach den §§ 843 bis 845 oder §§ 1569 bis 1586b des Bürgerlichen Gesetzbuchs erfolgten Verurteilung zur Entrichtung einer Geldrente nicht auf Sicherheitsleistung erkannt, so kann der Berechtigte gleichwohl Sicherheitsleistung verlangen, wenn sich die Vermögensverhältnisse des Verpflichteten erheblich verschlechtert haben; unter der gleichen Voraussetzung kann er eine Erhöhung der in dem Urteil bestimmten Sicherheit verlangen.
§ 325 Subjektive Rechtskraftwirkung
(1) Das rechtskräftige Urteil wirkt für und gegen die Parteien und die Personen, die nach dem Eintritt der Rechtshängigkeit Rechtsnachfolger der Parteien geworden sind oder den Besitz der in Streit befangenen Sache in solcher Weise erlangt haben, dass eine der Parteien oder ihr Rechtsnachfolger mittelbarer Besitzer geworden ist.
(2) Die Vorschriften des bürgerlichen Rechts zugunsten derjenigen, die Rechte von einem Nichtberechtigten herleiten, gelten entsprechend.
(3) Betrifft das Urteil einen Anspruch aus einer eingetragenen Reallast, Hypothek, Grundschuld oder Rentenschuld, so wirkt es im Falle einer Veräußerung des belasteten Grundstücks in Ansehung des Grundstücks gegen den Rechtsnachfolger auch dann, wenn dieser die Rechtshängigkeit nicht gekannt hat. Gegen den Ersteher eines im Wege der Zwangsversteigerung veräußerten Grundstücks wirkt das Urteil nur dann, wenn die Rechtshängigkeit spätestens im Versteigerungstermin vor der Aufforderung zur Abgabe von Geboten angemeldet worden ist.
(4) Betrifft das Urteil einen Anspruch aus einer eingetragenen Schiffshypothek, so gilt Absatz 3 Satz 1 entsprechend.
§ 325a Feststellungswirkung des Musterentscheids *)
Für die weitergehenden Wirkungen des Musterentscheids gelten die Vorschriften des Kapitalanleger- Musterverfahrensgesetzes.
§ 326 Rechtskraft bei Nacherbfolge
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(1) Ein Urteil, das zwischen einem Vorerben und einem Dritten über einen gegen den Vorerben als Erben gerichteten Anspruch oder über einen der Nacherbfolge unterliegenden Gegenstand ergeht, wirkt, sofern es vor dem Eintritt der Nacherbfolge rechtskräftig wird, für den Nacherben.
(2) Ein Urteil, das zwischen einem Vorerben und einem Dritten über einen der Nacherbfolge unterliegenden Gegenstand ergeht, wirkt auch gegen den Nacherben, sofern der Vorerbe befugt ist, ohne Zustimmung des Nacherben über den Gegenstand zu verfügen.
§ 327 Rechtskraft bei Testamentsvollstreckung
(1) Ein Urteil, das zwischen einem Testamentsvollstrecker und einem Dritten über ein der Verwaltung des Testamentsvollstreckers unterliegendes Recht ergeht, wirkt für und gegen den Erben.
(2) Das Gleiche gilt von einem Urteil, das zwischen einem Testamentsvollstrecker und einem Dritten über einen gegen den Nachlass gerichteten Anspruch ergeht, wenn der Testamentsvollstrecker zur Führung des Rechtsstreits berechtigt ist.
§ 328 Anerkennung ausländischer Urteile
(1) Die Anerkennung des Urteils eines ausländischen Gerichts ist ausgeschlossen: 1. wenn die Gerichte des Staates, dem das ausländische Gericht angehört, nach den deutschen Gesetzen nicht
zuständig sind; 2. wenn dem Beklagten, der sich auf das Verfahren nicht eingelassen hat und sich hierauf beruft, das
verfahrenseinleitende Dokument nicht ordnungsmäßig oder nicht so rechtzeitig zugestellt worden ist, dass er sich verteidigen konnte;
3. wenn das Urteil mit einem hier erlassenen oder einem anzuerkennenden früheren ausländischen Urteil oder wenn das ihm zugrunde liegende Verfahren mit einem früher hier rechtshängig gewordenen Verfahren unvereinbar ist;
4. wenn die Anerkennung des Urteils zu einem Ergebnis führt, das mit wesentlichen Grundsätzen des deutschen Rechts offensichtlich unvereinbar ist, insbesondere wenn die Anerkennung mit den Grundrechten unvereinbar ist;
5. wenn die Gegenseitigkeit nicht verbürgt ist.
(2) Die Vorschrift der Nummer 5 steht der Anerkennung des Urteils nicht entgegen, wenn das Urteil einen nichtvermögensrechtlichen Anspruch betrifft und nach den deutschen Gesetzen ein Gerichtsstand im Inland nicht begründet war.
§ 329 Beschlüsse und Verfügungen
(1) Die auf Grund einer mündlichen Verhandlung ergehenden Beschlüsse des Gerichts müssen verkündet werden. Die Vorschriften der §§ 309, 310 Abs. 1 und des § 311 Abs. 4 sind auf Beschlüsse des Gerichts, die Vorschriften des § 312 und des § 317 Abs. 2 Satz 1, Abs. 3 bis 5 auf Beschlüsse des Gerichts und auf Verfügungen des Vorsitzenden sowie eines beauftragten oder ersuchten Richters entsprechend anzuwenden.
(2) Nicht verkündete Beschlüsse des Gerichts und nicht verkündete Verfügungen des Vorsitzenden oder eines beauftragten oder ersuchten Richters sind den Parteien formlos mitzuteilen. Enthält die Entscheidung eine Terminsbestimmung oder setzt sie eine Frist in Lauf, so ist sie zuzustellen.
(3) Entscheidungen, die einen Vollstreckungstitel bilden oder die der sofortigen Beschwerde oder der Erinnerung nach § 573 Abs. 1 unterliegen, sind zuzustellen.
Titel 3 Versäumnisurteil § 330 Versäumnisurteil gegen den Kläger
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Erscheint der Kläger im Termin zur mündlichen Verhandlung nicht, so ist auf Antrag das Versäumnisurteil dahin zu erlassen, dass der Kläger mit der Klage abzuweisen sei.
§ 331 Versäumnisurteil gegen den Beklagten
(1) Beantragt der Kläger gegen den im Termin zur mündlichen Verhandlung nicht erschienenen Beklagten das Versäumnisurteil, so ist das tatsächliche mündliche Vorbringen des Klägers als zugestanden anzunehmen. Dies gilt nicht für Vorbringen zur Zuständigkeit des Gerichts nach § 29 Abs. 2, § 38.
(2) Soweit es den Klageantrag rechtfertigt, ist nach dem Antrag zu erkennen; soweit dies nicht der Fall, ist die Klage abzuweisen.
(3) Hat der Beklagte entgegen § 276 Abs. 1 Satz 1, Abs. 2 nicht rechtzeitig angezeigt, dass er sich gegen die Klage verteidigen wolle, so trifft auf Antrag des Klägers das Gericht die Entscheidung ohne mündliche Verhandlung; dies gilt nicht, wenn die Erklärung des Beklagten noch eingeht, bevor das von den Richtern unterschriebene Urteil der Geschäftsstelle übermittelt ist. Der Antrag kann schon in der Klageschrift gestellt werden. Eine Entscheidung ohne mündliche Verhandlung ist auch insoweit zulässig, als das Vorbringen des Klägers den Klageantrag in einer Nebenforderung nicht rechtfertigt, sofern der Kläger vor der Entscheidung auf diese Möglichkeit hingewiesen worden ist.
§ 331a Entscheidung nach Aktenlage
Beim Ausbleiben einer Partei im Termin zur mündlichen Verhandlung kann der Gegner statt eines Versäumnisurteils eine Entscheidung nach Lage der Akten beantragen; dem Antrag ist zu entsprechen, wenn der Sachverhalt für eine derartige Entscheidung hinreichend geklärt erscheint. § 251a Abs. 2 gilt entsprechend.
§ 332 Begriff des Verhandlungstermins
Als Verhandlungstermine im Sinne der vorstehenden Paragraphen sind auch diejenigen Termine anzusehen, auf welche die mündliche Verhandlung vertagt ist oder die zu ihrer Fortsetzung vor oder nach dem Erlass eines Beweisbeschlusses bestimmt sind.
§ 333 Nichtverhandeln der erschienenen Partei
Als nicht erschienen ist auch die Partei anzusehen, die in dem Termin zwar erscheint, aber nicht verhandelt.
§ 334 Unvollständiges Verhandeln
Wenn eine Partei in dem Termin verhandelt, sich jedoch über Tatsachen, Urkunden oder Anträge auf Parteivernehmung nicht erklärt, so sind die Vorschriften dieses Titels nicht anzuwenden.
§ 335 Unzulässigkeit einer Versäumnisentscheidung
(1) Der Antrag auf Erlass eines Versäumnisurteils oder einer Entscheidung nach Lage der Akten ist zurückzuweisen: 1. wenn die erschienene Partei die vom Gericht wegen eines von Amts wegen zu berücksichtigenden
Umstandes erforderte Nachweisung nicht zu beschaffen vermag; 2. wenn die nicht erschienene Partei nicht ordnungsmäßig, insbesondere nicht rechtzeitig geladen war; 3. wenn der nicht erschienenen Partei ein tatsächliches mündliches Vorbringen oder ein Antrag nicht
rechtzeitig mittels Schriftsatzes mitgeteilt war; 4. wenn im Falle des § 331 Abs. 3 dem Beklagten die Frist des § 276 Abs. 1 Satz 1 nicht mitgeteilt oder er nicht
gemäß § 276 Abs. 2 belehrt worden ist; 5. wenn in den Fällen des § 79 Abs. 3 die Zurückweisung des Bevollmächtigten oder die Untersagung der
weiteren Vertretung erst in dem Termin erfolgt oder der nicht erschienenen Partei nicht rechtzeitig mitgeteilt worden ist.
(2) Wird die Verhandlung vertagt, so ist die nicht erschienene Partei zu dem neuen Termin zu laden.
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§ 336 Rechtsmittel bei Zurückweisung
(1) Gegen den Beschluss, durch den der Antrag auf Erlass des Versäumnisurteils zurückgewiesen wird, findet sofortige Beschwerde statt. Wird der Beschluss aufgehoben, so ist die nicht erschienene Partei zu dem neuen Termin nicht zu laden.
(2) Die Ablehnung eines Antrages auf Entscheidung nach Lage der Akten ist unanfechtbar.
§ 337 Vertagung von Amts wegen
Das Gericht vertagt die Verhandlung über den Antrag auf Erlass des Versäumnisurteils oder einer Entscheidung nach Lage der Akten, wenn es dafür hält, dass die von dem Vorsitzenden bestimmte Einlassungs- oder Ladungsfrist zu kurz bemessen oder dass die Partei ohne ihr Verschulden am Erscheinen verhindert ist. Die nicht erschienene Partei ist zu dem neuen Termin zu laden.
§ 338 Einspruch
Der Partei, gegen die ein Versäumnisurteil erlassen ist, steht gegen das Urteil der Einspruch zu.
§ 339 Einspruchsfrist
(1) Die Einspruchsfrist beträgt zwei Wochen; sie ist eine Notfrist und beginnt mit der Zustellung des Versäumnisurteils.
(2) Muss die Zustellung im Ausland oder durch öffentliche Bekanntmachung erfolgen, so hat das Gericht die Einspruchsfrist im Versäumnisurteil oder nachträglich durch besonderen Beschluss zu bestimmen.
§ 340 Einspruchsschrift
(1) Der Einspruch wird durch Einreichung der Einspruchsschrift bei dem Prozessgericht eingelegt.
(2) Die Einspruchsschrift muss enthalten: 1. die Bezeichnung des Urteils, gegen das der Einspruch gerichtet wird; 2. die Erklärung, dass gegen dieses Urteil Einspruch eingelegt werde. Soll das Urteil nur zum Teil angefochten werden, so ist der Umfang der Anfechtung zu bezeichnen.
(3) In der Einspruchsschrift hat die Partei ihre Angriffs- und Verteidigungsmittel, soweit es nach der Prozesslage einer sorgfältigen und auf Förderung des Verfahrens bedachten Prozessführung entspricht, sowie Rügen, die die Zulässigkeit der Klage betreffen, vorzubringen. Auf Antrag kann der Vorsitzende für die Begründung die Frist verlängern, wenn nach seiner freien Überzeugung der Rechtsstreit durch die Verlängerung nicht verzögert wird oder wenn die Partei erhebliche Gründe darlegt. § 296 Abs. 1, 3, 4 ist entsprechend anzuwenden. Auf die Folgen einer Fristversäumung ist bei der Zustellung des Versäumnisurteils hinzuweisen.
§ 340a Zustellung der Einspruchsschrift
Die Einspruchsschrift ist der Gegenpartei zuzustellen. Dabei ist mitzuteilen, wann das Versäumnisurteil zugestellt und Einspruch eingelegt worden ist. Die erforderliche Zahl von Abschriften soll die Partei mit der Einspruchsschrift einreichen. Dies gilt nicht, wenn die Einspruchsschrift als elektronisches Dokument übermittelt wird.
§ 341 Einspruchsprüfung
(1) Das Gericht hat von Amts wegen zu prüfen, ob der Einspruch an sich statthaft und ob er in der gesetzlichen Form und Frist eingelegt ist. Fehlt es an einem dieser Erfordernisse, so ist der Einspruch als unzulässig zu verwerfen.
(2) Das Urteil kann ohne mündliche Verhandlung ergehen.
§ 341a Einspruchstermin
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Wird der Einspruch nicht als unzulässig verworfen, so ist der Termin zur mündlichen Verhandlung über den Einspruch und die Hauptsache zu bestimmen und den Parteien bekannt zu machen.
§ 342 Wirkung des zulässigen Einspruchs
Ist der Einspruch zulässig, so wird der Prozess, soweit der Einspruch reicht, in die Lage zurückversetzt, in der er sich vor Eintritt der Versäumnis befand.
§ 343 Entscheidung nach Einspruch
Insoweit die Entscheidung, die auf Grund der neuen Verhandlung zu erlassen ist, mit der in dem Versäumnisurteil enthaltenen Entscheidung übereinstimmt, ist auszusprechen, dass diese Entscheidung aufrechtzuerhalten sei. Insoweit diese Voraussetzung nicht zutrifft, wird das Versäumnisurteil in dem neuen Urteil aufgehoben.
§ 344 Versäumniskosten
Ist das Versäumnisurteil in gesetzlicher Weise ergangen, so sind die durch die Versäumnis veranlassten Kosten, soweit sie nicht durch einen unbegründeten Widerspruch des Gegners entstanden sind, der säumigen Partei auch dann aufzuerlegen, wenn infolge des Einspruchs eine abändernde Entscheidung erlassen wird.
§ 345 Zweites Versäumnisurteil
Einer Partei, die den Einspruch eingelegt hat, aber in der zur mündlichen Verhandlung bestimmten Sitzung oder in derjenigen Sitzung, auf welche die Verhandlung vertagt ist, nicht erscheint oder nicht zur Hauptsache verhandelt, steht gegen das Versäumnisurteil, durch das der Einspruch verworfen wird, ein weiterer Einspruch nicht zu.
§ 346 Verzicht und Zurücknahme des Einspruchs
Für den Verzicht auf den Einspruch und seine Zurücknahme gelten die Vorschriften über den Verzicht auf die Berufung und über ihre Zurücknahme entsprechend.
§ 347 Verfahren bei Widerklage und Zwischenstreit
(1) Die Vorschriften dieses Titels gelten für das Verfahren, das eine Widerklage oder die Bestimmung des Betrages eines dem Grunde nach bereits festgestellten Anspruchs zum Gegenstand hat, entsprechend.
(2) War ein Termin lediglich zur Verhandlung über einen Zwischenstreit bestimmt, so beschränkt sich das Versäumnisverfahren und das Versäumnisurteil auf die Erledigung dieses Zwischenstreits. Die Vorschriften dieses Titels gelten entsprechend.
Titel 4 Verfahren vor dem Einzelrichter § 348 Originärer Einzelrichter
(1) Die Zivilkammer entscheidet durch eines ihrer Mitglieder als Einzelrichter. Dies gilt nicht, wenn 1. das Mitglied Richter auf Probe ist und noch nicht über einen Zeitraum von einem Jahr
geschäftsverteilungsplanmäßig Rechtsprechungsaufgaben in bürgerlichen Rechtsstreitigkeiten wahrzunehmen hatte oder
2. die Zuständigkeit der Kammer nach dem Geschäftsverteilungsplan des Gerichts wegen der Zuordnung des Rechtsstreits zu den nachfolgenden Sachgebieten begründet ist: a) Streitigkeiten über Ansprüche aus Veröffentlichungen durch Druckerzeugnisse, Bild- und Tonträger jeder
Art, insbesondere in Presse, Rundfunk, Film und Fernsehen; b) Streitigkeiten aus Bank- und Finanzgeschäften; c) Streitigkeiten aus Bau- und Architektenverträgen sowie aus Ingenieurverträgen, soweit sie im
Zusammenhang mit Bauleistungen stehen;
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d) Streitigkeiten aus der Berufstätigkeit der Rechtsanwälte, Patentanwälte, Notare, Steuerberater, Steuerbevollmächtigten, Wirtschaftsprüfer und vereidigten Buchprüfer;
e) Streitigkeiten über Ansprüche aus Heilbehandlungen; f) Streitigkeiten aus Handelssachen im Sinne des § 95 des Gerichtsverfassungsgesetzes; g) Streitigkeiten über Ansprüche aus Fracht-, Speditions- und Lagergeschäften; h) Streitigkeiten aus Versicherungsvertragsverhältnissen; i) Streitigkeiten aus den Bereichen des Urheber- und Verlagsrechts; j) Streitigkeiten aus den Bereichen der Kommunikations- und Informationstechnologie; k) Streitigkeiten, die dem Landgericht ohne Rücksicht auf den Streitwert zugewiesen sind.
(2) Bei Zweifeln über das Vorliegen der Voraussetzungen des Absatzes 1 entscheidet die Kammer durch unanfechtbaren Beschluss.
(3) Der Einzelrichter legt den Rechtsstreit der Zivilkammer zur Entscheidung über eine Übernahme vor, wenn 1. die Sache besondere Schwierigkeiten tatsächlicher oder rechtlicher Art aufweist, 2. die Rechtssache grundsätzliche Bedeutung hat oder 3. die Parteien dies übereinstimmend beantragen. Die Kammer übernimmt den Rechtsstreit, wenn die Voraussetzungen nach Satz 1 Nr. 1 oder 2 vorliegen. Sie entscheidet hierüber durch Beschluss. Eine Zurückübertragung auf den Einzelrichter ist ausgeschlossen.
(4) Auf eine erfolgte oder unterlassene Vorlage oder Übernahme kann ein Rechtsmittel nicht gestützt werden.
§ 348a Obligatorischer Einzelrichter
(1) Ist eine originäre Einzelrichterzuständigkeit nach § 348 Abs. 1 nicht begründet, überträgt die Zivilkammer die Sache durch Beschluss einem ihrer Mitglieder als Einzelrichter zur Entscheidung, wenn 1. die Sache keine besonderen Schwierigkeiten tatsächlicher oder rechtlicher Art aufweist, 2. die Rechtssache keine grundsätzliche Bedeutung hat und 3. nicht bereits im Haupttermin vor der Zivilkammer zur Hauptsache verhandelt worden ist, es sei denn, dass
inzwischen ein Vorbehalts-, Teil- oder Zwischenurteil ergangen ist.
(2) Der Einzelrichter legt den Rechtsstreit der Zivilkammer zur Entscheidung über eine Übernahme vor, wenn 1. sich aus einer wesentlichen Änderung der Prozesslage besondere tatsächliche oder rechtliche
Schwierigkeiten der Sache oder die grundsätzliche Bedeutung der Rechtssache ergeben oder 2. die Parteien dies übereinstimmend beantragen. Die Kammer übernimmt den Rechtsstreit, wenn die Voraussetzungen nach Satz 1 Nr. 1 vorliegen. Sie entscheidet hierüber nach Anhörung der Parteien durch Beschluss. Eine erneute Übertragung auf den Einzelrichter ist ausgeschlossen.
(3) Auf eine erfolgte oder unterlassene Übertragung, Vorlage oder Übernahme kann ein Rechtsmittel nicht gestützt werden.
§ 349 Vorsitzender der Kammer für Handelssachen
(1) In der Kammer für Handelssachen hat der Vorsitzende die Sache so weit zu fördern, dass sie in einer mündlichen Verhandlung vor der Kammer erledigt werden kann. Beweise darf er nur insoweit erheben, als anzunehmen ist, dass es für die Beweiserhebung auf die besondere Sachkunde der ehrenamtlichen Richter nicht ankommt und die Kammer das Beweisergebnis auch ohne unmittelbaren Eindruck von dem Verlauf der Beweisaufnahme sachgemäß zu würdigen vermag.
(2) Der Vorsitzende entscheidet 1. über die Verweisung des Rechtsstreits;
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2. über Rügen, die die Zulässigkeit der Klage betreffen, soweit über sie abgesondert verhandelt wird; 3. über die Aussetzung des Verfahrens; 4. bei Zurücknahme der Klage, Verzicht auf den geltend gemachten Anspruch oder Anerkenntnis des
Anspruchs; 5. bei Säumnis einer Partei oder beider Parteien; 6. über die Kosten des Rechtsstreits nach § 91a; 7. im Verfahren über die Bewilligung der Prozesskostenhilfe; 8. in Wechsel- und Scheckprozessen; 9. über die Art einer angeordneten Sicherheitsleistung; 10. über die einstweilige Einstellung der Zwangsvollstreckung; 11. über den Wert des Streitgegenstandes; 12. über Kosten, Gebühren und Auslagen.
(3) Im Einverständnis der Parteien kann der Vorsitzende auch im Übrigen an Stelle der Kammer entscheiden.
(4) Die §§ 348 und 348a sind nicht anzuwenden.
§ 350 Rechtsmittel
Für die Anfechtung der Entscheidungen des Einzelrichters (§§ 348, 348a) und des Vorsitzenden der Kammer für Handelssachen (§ 349) gelten dieselben Vorschriften wie für die Anfechtung entsprechender Entscheidungen der Kammer.
§§ 351 bis 354 (weggefallen)
Titel 5 Allgemeine Vorschriften über die Beweisaufnahme § 355 Unmittelbarkeit der Beweisaufnahme
(1) Die Beweisaufnahme erfolgt vor dem Prozessgericht. Sie ist nur in den durch dieses Gesetz bestimmten Fällen einem Mitglied des Prozessgerichts oder einem anderen Gericht zu übertragen.
(2) Eine Anfechtung des Beschlusses, durch den die eine oder die andere Art der Beweisaufnahme angeordnet wird, findet nicht statt.
§ 356 Beibringungsfrist
Steht der Aufnahme des Beweises ein Hindernis von ungewisser Dauer entgegen, so ist durch Beschluss eine Frist zu bestimmen, nach deren fruchtlosem Ablauf das Beweismittel nur benutzt werden kann, wenn nach der freien Überzeugung des Gerichts dadurch das Verfahren nicht verzögert wird.
§ 357 Parteiöffentlichkeit
(1) Den Parteien ist gestattet, der Beweisaufnahme beizuwohnen.
(2) Wird die Beweisaufnahme einem Mitglied des Prozessgerichts oder einem anderen Gericht übertragen, so ist die Terminsbestimmung den Parteien ohne besondere Form mitzuteilen, sofern nicht das Gericht die Zustellung anordnet. Bei Übersendung durch die Post gilt die Mitteilung, wenn die Wohnung der Partei im Bereich des Ortsbestellverkehrs liegt, an dem folgenden, im Übrigen an dem zweiten Werktage nach der Aufgabe zur Post als bewirkt, sofern nicht die Partei glaubhaft macht, dass ihr die Mitteilung nicht oder erst in einem späteren Zeitpunkt zugegangen ist.
§ 357a
(weggefallen)
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§ 358 Notwendigkeit eines Beweisbeschlusses
Erfordert die Beweisaufnahme ein besonderes Verfahren, so ist es durch Beweisbeschluss anzuordnen.
§ 358a Beweisbeschluss und Beweisaufnahme vor mündlicher Verhandlung
Das Gericht kann schon vor der mündlichen Verhandlung einen Beweisbeschluss erlassen. Der Beschluss kann vor der mündlichen Verhandlung ausgeführt werden, soweit er anordnet 1. eine Beweisaufnahme vor dem beauftragten oder ersuchten Richter, 2. die Einholung amtlicher Auskünfte, 3. eine schriftliche Beantwortung der Beweisfrage nach § 377 Abs. 3, 4. die Begutachtung durch Sachverständige, 5. die Einnahme eines Augenscheins.
§ 359 Inhalt des Beweisbeschlusses
Der Beweisbeschluss enthält: 1. die Bezeichnung der streitigen Tatsachen, über die der Beweis zu erheben ist; 2. die Bezeichnung der Beweismittel unter Benennung der zu vernehmenden Zeugen und Sachverständigen
oder der zu vernehmenden Partei; 3. die Bezeichnung der Partei, die sich auf das Beweismittel berufen hat.
§ 360 Änderung des Beweisbeschlusses
Vor der Erledigung des Beweisbeschlusses kann keine Partei dessen Änderung auf Grund der früheren Verhandlungen verlangen. Das Gericht kann jedoch auf Antrag einer Partei oder von Amts wegen den Beweisbeschluss auch ohne erneute mündliche Verhandlung insoweit ändern, als der Gegner zustimmt oder es sich nur um die Berichtigung oder Ergänzung der im Beschluss angegebenen Beweistatsachen oder um die Vernehmung anderer als der im Beschluss angegebenen Zeugen oder Sachverständigen handelt. Die gleiche Befugnis hat der beauftragte oder ersuchte Richter. Die Parteien sind tunlichst vorher zu hören und in jedem Fall von der Änderung unverzüglich zu benachrichtigen.
§ 361 Beweisaufnahme durch beauftragten Richter
(1) Soll die Beweisaufnahme durch ein Mitglied des Prozessgerichts erfolgen, so wird bei der Verkündung des Beweisbeschlusses durch den Vorsitzenden der beauftragte Richter bezeichnet und der Termin zur Beweisaufnahme bestimmt.
(2) Ist die Terminsbestimmung unterblieben, so erfolgt sie durch den beauftragten Richter, wird er verhindert, den Auftrag zu vollziehen, so ernennt der Vorsitzende ein anderes Mitglied.
§ 362 Beweisaufnahme durch ersuchten Richter
(1) Soll die Beweisaufnahme durch ein anderes Gericht erfolgen, so ist das Ersuchungsschreiben von dem Vorsitzenden zu erlassen.
(2) Die auf die Beweisaufnahme sich beziehenden Verhandlungen übermittelt der ersuchte Richter der Geschäftsstelle des Prozessgerichts in Urschrift; die Geschäftsstelle benachrichtigt die Parteien von dem Eingang.
§ 363 Beweisaufnahme im Ausland
(1) Soll die Beweisaufnahme im Ausland erfolgen, so hat der Vorsitzende die zuständige Behörde um Aufnahme des Beweises zu ersuchen.
(2) Kann die Beweisaufnahme durch einen Bundeskonsul erfolgen, so ist das Ersuchen an diesen zu richten.
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(3) Die Vorschriften der Verordnung (EG) Nr. 1206/2001 des Rates vom 28. Mai 2001 über die Zusammenarbeit zwischen den Gerichten der Mitgliedstaaten auf dem Gebiet der Beweisaufnahme in Zivil- oder Handelssachen (ABl. EG Nr. L 174 S. 1) bleiben unberührt. Für die Durchführung gelten die §§ 1072 und 1073.
§ 364 Parteimitwirkung bei Beweisaufnahme im Ausland
(1) Wird eine ausländische Behörde ersucht, den Beweis aufzunehmen, so kann das Gericht anordnen, dass der Beweisführer das Ersuchungsschreiben zu besorgen und die Erledigung des Ersuchens zu betreiben habe.
(2) Das Gericht kann sich auf die Anordnung beschränken, dass der Beweisführer eine den Gesetzen des fremden Staates entsprechende öffentliche Urkunde über die Beweisaufnahme beizubringen habe.
(3) In beiden Fällen ist in dem Beweisbeschluss eine Frist zu bestimmen, binnen der von dem Beweisführer die Urkunde auf der Geschäftsstelle niederzulegen ist. Nach fruchtlosem Ablauf dieser Frist kann die Urkunde nur benutzt werden, wenn dadurch das Verfahren nicht verzögert wird.
(4) Der Beweisführer hat den Gegner, wenn möglich, von dem Ort und der Zeit der Beweisaufnahme so zeitig in Kenntnis zu setzen, dass dieser seine Rechte in geeigneter Weise wahrzunehmen vermag. Ist die Benachrichtigung unterblieben, so hat das Gericht zu ermessen, ob und inwieweit der Beweisführer zur Benutzung der Beweisverhandlung berechtigt ist.
§ 365 Abgabe durch beauftragten oder ersuchten Richter
Der beauftragte oder ersuchte Richter ist ermächtigt, falls sich später Gründe ergeben, welche die Beweisaufnahme durch ein anderes Gericht sachgemäß erscheinen lassen, dieses Gericht um die Aufnahme des Beweises zu ersuchen. Die Parteien sind von dieser Verfügung in Kenntnis zu setzen.
§ 366 Zwischenstreit
(1) Erhebt sich bei der Beweisaufnahme vor einem beauftragten oder ersuchten Richter ein Streit, von dessen Erledigung die Fortsetzung der Beweisaufnahme abhängig und zu dessen Entscheidung der Richter nicht berechtigt ist, so erfolgt die Erledigung durch das Prozessgericht.
(2) Der Termin zur mündlichen Verhandlung über den Zwischenstreit ist von Amts wegen zu bestimmen und den Parteien bekannt zu machen.
§ 367 Ausbleiben der Partei
(1) Erscheint eine Partei oder erscheinen beide Parteien in dem Termin zur Beweisaufnahme nicht, so ist die Beweisaufnahme gleichwohl insoweit zu bewirken, als dies nach Lage der Sache geschehen kann.
(2) Eine nachträgliche Beweisaufnahme oder eine Vervollständigung der Beweisaufnahme ist bis zum Schluss derjenigen mündlichen Verhandlung, auf die das Urteil ergeht, auf Antrag anzuordnen, wenn das Verfahren dadurch nicht verzögert wird oder wenn die Partei glaubhaft macht, dass sie ohne ihr Verschulden außerstande gewesen sei, in dem früheren Termin zu erscheinen, und im Falle des Antrags auf Vervollständigung, dass durch ihr Nichterscheinen eine wesentliche Unvollständigkeit der Beweisaufnahme veranlasst sei.
§ 368 Neuer Beweistermin
Wird ein neuer Termin zur Beweisaufnahme oder zu ihrer Fortsetzung erforderlich, so ist dieser Termin, auch wenn der Beweisführer oder beide Parteien in dem früheren Termin nicht erschienen waren, von Amts wegen zu bestimmen.
§ 369 Ausländische Beweisaufnahme
Entspricht die von einer ausländischen Behörde vorgenommene Beweisaufnahme den für das Prozessgericht geltenden Gesetzen, so kann daraus, dass sie nach den ausländischen Gesetzen mangelhaft ist, kein Einwand entnommen werden.
§ 370 Fortsetzung der mündlichen Verhandlung
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(1) Erfolgt die Beweisaufnahme vor dem Prozessgericht, so ist der Termin, in dem die Beweisaufnahme stattfindet, zugleich zur Fortsetzung der mündlichen Verhandlung bestimmt.
(2) In dem Beweisbeschluss, der anordnet, dass die Beweisaufnahme vor einem beauftragten oder ersuchten Richter erfolgen solle, kann zugleich der Termin zur Fortsetzung der mündlichen Verhandlung vor dem Prozessgericht bestimmt werden. Ist dies nicht geschehen, so wird nach Beendigung der Beweisaufnahme dieser Termin von Amts wegen bestimmt und den Parteien bekannt gemacht.
Titel 6 Beweis durch Augenschein § 371 Beweis durch Augenschein
(1) Der Beweis durch Augenschein wird durch Bezeichnung des Gegenstandes des Augenscheins und durch die Angabe der zu beweisenden Tatsachen angetreten. Ist ein elektronisches Dokument Gegenstand des Beweises, wird der Beweis durch Vorlegung oder Übermittlung der Datei angetreten.
(2) Befindet sich der Gegenstand nach der Behauptung des Beweisführers nicht in seinem Besitz, so wird der Beweis außerdem durch den Antrag angetreten, zur Herbeischaffung des Gegenstandes eine Frist zu setzen oder eine Anordnung nach § 144 zu erlassen. Die §§ 422 bis 432 gelten entsprechend.
(3) Vereitelt eine Partei die ihr zumutbare Einnahme des Augenscheins, so können die Behauptungen des Gegners über die Beschaffenheit des Gegenstandes als bewiesen angesehen werden.
§ 371a Beweiskraft elektronischer Dokumente
(1) Auf private elektronische Dokumente, die mit einer qualifizierten elektronischen Signatur versehen sind, finden die Vorschriften über die Beweiskraft privater Urkunden entsprechende Anwendung. Der Anschein der Echtheit einer in elektronischer Form vorliegenden Erklärung, der sich auf Grund der Prüfung nach dem Signaturgesetz ergibt, kann nur durch Tatsachen erschüttert werden, die ernstliche Zweifel daran begründen, dass die Erklärung vom Signaturschlüssel-Inhaber abgegeben worden ist.
(2) Auf elektronische Dokumente, die von einer öffentlichen Behörde innerhalb der Grenzen ihrer Amtsbefugnisse oder von einer mit öffentlichem Glauben versehenen Person innerhalb des ihr zugewiesenen Geschäftskreises in der vorgeschriebenen Form erstellt worden sind (öffentliche elektronische Dokumente), finden die Vorschriften über die Beweiskraft öffentlicher Urkunden entsprechende Anwendung. Ist das Dokument mit einer qualifizierten elektronischen Signatur versehen, gilt § 437 entsprechend.
§ 371b Beweiskraft gescannter öffentlicher Urkunden
Wird eine öffentliche Urkunde nach dem Stand der Technik von einer öffentlichen Behörde oder von einer mit öffentlichem Glauben versehenen Person in ein elektronisches Dokument übertragen und liegt die Bestätigung vor, dass das elektronische Dokument mit der Urschrift bildlich und inhaltlich übereinstimmt, finden auf das elektronische Dokument die Vorschriften über die Beweiskraft öffentlicher Urkunden entsprechende Anwendung. Sind das Dokument und die Bestätigung mit einer qualifizierten elektronischen Signatur versehen, gilt § 437 entsprechend.
§ 372 Beweisaufnahme
(1) Das Prozessgericht kann anordnen, dass bei der Einnahme des Augenscheins ein oder mehrere Sachverständige zuzuziehen seien.
(2) Es kann einem Mitglied des Prozessgerichts oder einem anderen Gericht die Einnahme des Augenscheins übertragen, auch die Ernennung der zuzuziehenden Sachverständigen überlassen.
§ 372a Untersuchungen zur Feststellung der Abstammung
(1) Soweit es zur Feststellung der Abstammung erforderlich ist, hat jede Person Untersuchungen, insbesondere die Entnahme von Blutproben, zu dulden, es sei denn, dass die Untersuchung dem zu Untersuchenden nicht zugemutet werden kann.
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(2) Die §§ 386 bis 390 gelten entsprechend. Bei wiederholter unberechtigter Verweigerung der Untersuchung kann auch unmittelbarer Zwang angewendet, insbesondere die zwangsweise Vorführung zur Untersuchung angeordnet werden.
Titel 7 Zeugenbeweis § 373 Beweisantritt
Der Zeugenbeweis wird durch die Benennung der Zeugen und die Bezeichnung der Tatsachen, über welche die Vernehmung der Zeugen stattfinden soll, angetreten.
§ 374
(weggefallen)
§ 375 Beweisaufnahme durch beauftragten oder ersuchten Richter
(1) Die Aufnahme des Zeugenbeweises darf einem Mitglied des Prozessgerichts oder einem anderen Gericht nur übertragen werden, wenn von vornherein anzunehmen ist, dass das Prozessgericht das Beweisergebnis auch ohne unmittelbaren Eindruck von dem Verlauf der Beweisaufnahme sachgemäß zu würdigen vermag, und 1. wenn zur Ausmittlung der Wahrheit die Vernehmung des Zeugen an Ort und Stelle dienlich erscheint
oder nach gesetzlicher Vorschrift der Zeuge nicht an der Gerichtsstelle, sondern an einem anderen Ort zu vernehmen ist;
2. wenn der Zeuge verhindert ist, vor dem Prozessgericht zu erscheinen und eine Zeugenvernehmung nach § 128a Abs. 2 nicht stattfindet;
3. wenn dem Zeugen das Erscheinen vor dem Prozessgericht wegen großer Entfernung unter Berücksichtigung der Bedeutung seiner Aussage nicht zugemutet werden kann und eine Zeugenvernehmung nach § 128a Abs. 2 nicht stattfindet.
(1a) Einem Mitglied des Prozessgerichts darf die Aufnahme des Zeugenbeweises auch dann übertragen werden, wenn dies zur Vereinfachung der Verhandlung vor dem Prozessgericht zweckmäßig erscheint und wenn von vornherein anzunehmen ist, dass das Prozessgericht das Beweisergebnis auch ohne unmittelbaren Eindruck von dem Verlauf der Beweisaufnahme sachgemäß zu würdigen vermag.
(2) Der Bundespräsident ist in seiner Wohnung zu vernehmen.
§ 376 Vernehmung bei Amtsverschwiegenheit
(1) Für die Vernehmung von Richtern, Beamten und anderen Personen des öffentlichen Dienstes als Zeugen über Umstände, auf die sich ihre Pflicht zur Amtsverschwiegenheit bezieht, und für die Genehmigung zur Aussage gelten die besonderen beamtenrechtlichen Vorschriften.
(2) Für die Mitglieder des Bundestages, eines Landtages, der Bundes- oder einer Landesregierung sowie für die Angestellten einer Fraktion des Bundestages oder eines Landtages gelten die für sie maßgebenden besonderen Vorschriften.
(3) Eine Genehmigung in den Fällen der Absätze 1, 2 ist durch das Prozessgericht einzuholen und dem Zeugen bekannt zu machen.
(4) Der Bundespräsident kann das Zeugnis verweigern, wenn die Ablegung des Zeugnisses dem Wohl des Bundes oder eines deutschen Landes Nachteile bereiten würde.
(5) Diese Vorschriften gelten auch, wenn die vorgenannten Personen nicht mehr im öffentlichen Dienst oder Angestellte einer Fraktion sind oder ihre Mandate beendet sind, soweit es sich um Tatsachen handelt, die sich während ihrer Dienst-, Beschäftigungs- oder Mandatszeit ereignet haben oder ihnen während ihrer Dienst-, Beschäftigungs- oder Mandatszeit zur Kenntnis gelangt sind.
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§ 377 Zeugenladung
(1) Die Ladung der Zeugen ist von der Geschäftsstelle unter Bezugnahme auf den Beweisbeschluss auszufertigen und von Amts wegen mitzuteilen. Sie wird, sofern nicht das Gericht die Zustellung anordnet, formlos übermittelt.
(2) Die Ladung muss enthalten: 1. die Bezeichnung der Parteien; 2. den Gegenstand der Vernehmung; 3. die Anweisung, zur Ablegung des Zeugnisses bei Vermeidung der durch das Gesetz angedrohten
Ordnungsmittel in dem nach Zeit und Ort zu bezeichnenden Termin zu erscheinen.
(3) Das Gericht kann eine schriftliche Beantwortung der Beweisfrage anordnen, wenn es dies im Hinblick auf den Inhalt der Beweisfrage und die Person des Zeugen für ausreichend erachtet. Der Zeuge ist darauf hinzuweisen, dass er zur Vernehmung geladen werden kann. Das Gericht ordnet die Ladung des Zeugen an, wenn es dies zur weiteren Klärung der Beweisfrage für notwendig erachtet.
§ 378 Aussageerleichternde Unterlagen
(1) Soweit es die Aussage über seine Wahrnehmungen erleichtert, hat der Zeuge Aufzeichnungen und andere Unterlagen einzusehen und zu dem Termin mitzubringen, wenn ihm dies gestattet und zumutbar ist. Die §§ 142 und 429 bleiben unberührt.
(2) Kommt der Zeuge auf eine bestimmte Anordnung des Gerichts der Verpflichtung nach Absatz 1 nicht nach, so kann das Gericht die in § 390 bezeichneten Maßnahmen treffen; hierauf ist der Zeuge vorher hinzuweisen.
§ 379 Auslagenvorschuss
Das Gericht kann die Ladung des Zeugen davon abhängig machen, dass der Beweisführer einen hinreichenden Vorschuss zur Deckung der Auslagen zahlt, die der Staatskasse durch die Vernehmung des Zeugen erwachsen. Wird der Vorschuss nicht innerhalb der bestimmten Frist gezahlt, so unterbleibt die Ladung, wenn die Zahlung nicht so zeitig nachgeholt wird, dass die Vernehmung durchgeführt werden kann, ohne dass dadurch nach der freien Überzeugung des Gerichts das Verfahren verzögert wird.
§ 380 Folgen des Ausbleibens des Zeugen
(1) Einem ordnungsgemäß geladenen Zeugen, der nicht erscheint, werden, ohne dass es eines Antrages bedarf, die durch das Ausbleiben verursachten Kosten auferlegt. Zugleich wird gegen ihn ein Ordnungsgeld und für den Fall, dass dieses nicht beigetrieben werden kann, Ordnungshaft festgesetzt.
(2) Im Falle wiederholten Ausbleibens wird das Ordnungsmittel noch einmal festgesetzt; auch kann die zwangsweise Vorführung des Zeugen angeordnet werden.
(3) Gegen diese Beschlüsse findet die sofortige Beschwerde statt.
§ 381 Genügende Entschuldigung des Ausbleibens
(1) Die Auferlegung der Kosten und die Festsetzung eines Ordnungsmittels unterbleiben, wenn das Ausbleiben des Zeugen rechtzeitig genügend entschuldigt wird. Erfolgt die Entschuldigung nach Satz 1 nicht rechtzeitig, so unterbleiben die Auferlegung der Kosten und die Festsetzung eines Ordnungsmittels nur dann, wenn glaubhaft gemacht wird, dass den Zeugen an der Verspätung der Entschuldigung kein Verschulden trifft. Erfolgt die genügende Entschuldigung oder die Glaubhaftmachung nachträglich, so werden die getroffenen Anordnungen unter den Voraussetzungen des Satzes 2 aufgehoben.
(2) Die Anzeigen und Gesuche des Zeugen können schriftlich oder zum Protokoll der Geschäftsstelle oder mündlich in dem zur Vernehmung bestimmten neuen Termin angebracht werden.
§ 382 Vernehmung an bestimmten Orten
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(1) Die Mitglieder der Bundesregierung oder einer Landesregierung sind an ihrem Amtssitz oder, wenn sie sich außerhalb ihres Amtssitzes aufhalten, an ihrem Aufenthaltsort zu vernehmen.
(2) Die Mitglieder des Bundestages, des Bundesrates, eines Landtages oder einer zweiten Kammer sind während ihres Aufenthaltes am Sitz der Versammlung dort zu vernehmen.
(3) Zu einer Abweichung von den vorstehenden Vorschriften bedarf es: für die Mitglieder der Bundesregierung der Genehmigung der Bundesregierung, für die Mitglieder einer Landesregierung der Genehmigung der Landesregierung, für die Mitglieder einer der im Absatz 2 genannten Versammlungen der Genehmigung dieser Versammlung.
§ 383 Zeugnisverweigerung aus persönlichen Gründen
(1) Zur Verweigerung des Zeugnisses sind berechtigt: 1. der Verlobte einer Partei oder derjenige, mit dem die Partei ein Versprechen eingegangen ist, eine
Lebenspartnerschaft zu begründen; 2. der Ehegatte einer Partei, auch wenn die Ehe nicht mehr besteht; 2a. der Lebenspartner einer Partei, auch wenn die Lebenspartnerschaft nicht mehr besteht; 3. diejenigen, die mit einer Partei in gerader Linie verwandt oder verschwägert, in der Seitenlinie bis zum
dritten Grad verwandt oder bis zum zweiten Grad verschwägert sind oder waren; 4. Geistliche in Ansehung desjenigen, was ihnen bei der Ausübung der Seelsorge anvertraut ist; 5. Personen, die bei der Vorbereitung, Herstellung oder Verbreitung von periodischen Druckwerken oder
Rundfunksendungen berufsmäßig mitwirken oder mitgewirkt haben, über die Person des Verfassers, Einsenders oder Gewährsmanns von Beiträgen und Unterlagen sowie über die ihnen im Hinblick auf ihre Tätigkeit gemachten Mitteilungen, soweit es sich um Beiträge, Unterlagen und Mitteilungen für den redaktionellen Teil handelt;
6. Personen, denen kraft ihres Amtes, Standes oder Gewerbes Tatsachen anvertraut sind, deren Geheimhaltung durch ihre Natur oder durch gesetzliche Vorschrift geboten ist, in Betreff der Tatsachen, auf welche die Verpflichtung zur Verschwiegenheit sich bezieht.
(2) Die unter Nummern 1 bis 3 bezeichneten Personen sind vor der Vernehmung über ihr Recht zur Verweigerung des Zeugnisses zu belehren.
(3) Die Vernehmung der unter Nummern 4 bis 6 bezeichneten Personen ist, auch wenn das Zeugnis nicht verweigert wird, auf Tatsachen nicht zu richten, in Ansehung welcher erhellt, dass ohne Verletzung der Verpflichtung zur Verschwiegenheit ein Zeugnis nicht abgelegt werden kann.
§ 384 Zeugnisverweigerung aus sachlichen Gründen
Das Zeugnis kann verweigert werden: 1. über Fragen, deren Beantwortung dem Zeugen oder einer Person, zu der er in einem der im § 383 Nr. 1 bis 3
bezeichneten Verhältnisse steht, einen unmittelbaren vermögensrechtlichen Schaden verursachen würde; 2. über Fragen, deren Beantwortung dem Zeugen oder einem seiner im § 383 Nr. 1 bis 3 bezeichneten
Angehörigen zur Unehre gereichen oder die Gefahr zuziehen würde, wegen einer Straftat oder einer Ordnungswidrigkeit verfolgt zu werden;
3. über Fragen, die der Zeuge nicht würde beantworten können, ohne ein Kunst- oder Gewerbegeheimnis zu offenbaren.
§ 385 Ausnahmen vom Zeugnisverweigerungsrecht
(1) In den Fällen des § 383 Nr. 1 bis 3 und des § 384 Nr. 1 darf der Zeuge das Zeugnis nicht verweigern: 1. über die Errichtung und den Inhalt eines Rechtsgeschäfts, bei dessen Errichtung er als Zeuge zugezogen
war; 2. über Geburten, Verheiratungen oder Sterbefälle von Familienmitgliedern;
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3. über Tatsachen, welche die durch das Familienverhältnis bedingten Vermögensangelegenheiten betreffen; 4. über die auf das streitige Rechtsverhältnis sich beziehenden Handlungen, die von ihm selbst als
Rechtsvorgänger oder Vertreter einer Partei vorgenommen sein sollen.
(2) Die im § 383 Nr. 4, 6 bezeichneten Personen dürfen das Zeugnis nicht verweigern, wenn sie von der Verpflichtung zur Verschwiegenheit entbunden sind.
§ 386 Erklärung der Zeugnisverweigerung
(1) Der Zeuge, der das Zeugnis verweigert, hat vor dem zu seiner Vernehmung bestimmten Termin schriftlich oder zum Protokoll der Geschäftsstelle oder in diesem Termin die Tatsachen, auf die er die Weigerung gründet, anzugeben und glaubhaft zu machen.
(2) Zur Glaubhaftmachung genügt in den Fällen des § 383 Nr. 4, 6 die mit Berufung auf einen geleisteten Diensteid abgegebene Versicherung.
(3) Hat der Zeuge seine Weigerung schriftlich oder zum Protokoll der Geschäftsstelle erklärt, so ist er nicht verpflichtet, in dem zu seiner Vernehmung bestimmten Termin zu erscheinen.
(4) Von dem Eingang einer Erklärung des Zeugen oder von der Aufnahme einer solchen zum Protokoll hat die Geschäftsstelle die Parteien zu benachrichtigen.
§ 387 Zwischenstreit über Zeugnisverweigerung
(1) Über die Rechtmäßigkeit der Weigerung wird von dem Prozessgericht nach Anhörung der Parteien entschieden.
(2) Der Zeuge ist nicht verpflichtet, sich durch einen Anwalt vertreten zu lassen.
(3) Gegen das Zwischenurteil findet sofortige Beschwerde statt.
§ 388 Zwischenstreit über schriftliche Zeugnisverweigerung
Hat der Zeuge seine Weigerung schriftlich oder zum Protokoll der Geschäftsstelle erklärt und ist er in dem Termin nicht erschienen, so hat auf Grund seiner Erklärungen ein Mitglied des Prozessgerichts Bericht zu erstatten.
§ 389 Zeugnisverweigerung vor beauftragtem oder ersuchtem Richter
(1) Erfolgt die Weigerung vor einem beauftragten oder ersuchten Richter, so sind die Erklärungen des Zeugen, wenn sie nicht schriftlich oder zum Protokoll der Geschäftsstelle abgegeben sind, nebst den Erklärungen der Parteien in das Protokoll aufzunehmen.
(2) Zur mündlichen Verhandlung vor dem Prozessgericht werden der Zeuge und die Parteien von Amts wegen geladen.
(3) Auf Grund der von dem Zeugen und den Parteien abgegebenen Erklärungen hat ein Mitglied des Prozessgerichts Bericht zu erstatten. Nach dem Vortrag des Berichterstatters können der Zeuge und die Parteien zur Begründung ihrer Anträge das Wort nehmen; neue Tatsachen oder Beweismittel dürfen nicht geltend gemacht werden.
§ 390 Folgen der Zeugnisverweigerung
(1) Wird das Zeugnis oder die Eidesleistung ohne Angabe eines Grundes oder aus einem rechtskräftig für unerheblich erklärten Grund verweigert, so werden dem Zeugen, ohne dass es eines Antrages bedarf, die durch die Weigerung verursachten Kosten auferlegt. Zugleich wird gegen ihn ein Ordnungsgeld und für den Fall, dass dieses nicht beigetrieben werden kann, Ordnungshaft festgesetzt.
(2) Im Falle wiederholter Weigerung ist auf Antrag zur Erzwingung des Zeugnisses die Haft anzuordnen, jedoch nicht über den Zeitpunkt der Beendigung des Prozesses in dem Rechtszug hinaus. Die Vorschriften über die Haft im Zwangsvollstreckungsverfahren gelten entsprechend.
(3) Gegen die Beschlüsse findet die sofortige Beschwerde statt.
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§ 391 Zeugenbeeidigung
Ein Zeuge ist, vorbehaltlich der sich aus § 393 ergebenden Ausnahmen, zu beeidigen, wenn das Gericht dies mit Rücksicht auf die Bedeutung der Aussage oder zur Herbeiführung einer wahrheitsgemäßen Aussage für geboten erachtet und die Parteien auf die Beeidigung nicht verzichten.
§ 392 Nacheid; Eidesnorm
Die Beeidigung erfolgt nach der Vernehmung. Mehrere Zeugen können gleichzeitig beeidigt werden. Die Eidesnorm geht dahin, dass der Zeuge nach bestem Wissen die reine Wahrheit gesagt und nichts verschwiegen habe.
§ 393 Uneidliche Vernehmung
Personen, die zur Zeit der Vernehmung das 16. Lebensjahr noch nicht vollendet oder wegen mangelnder Verstandesreife oder wegen Verstandesschwäche von dem Wesen und der Bedeutung des Eides keine genügende Vorstellung haben, sind unbeeidigt zu vernehmen.
§ 394 Einzelvernehmung
(1) Jeder Zeuge ist einzeln und in Abwesenheit der später abzuhörenden Zeugen zu vernehmen.
(2) Zeugen, deren Aussagen sich widersprechen, können einander gegenübergestellt werden.
§ 395 Wahrheitsermahnung; Vernehmung zur Person
(1) Vor der Vernehmung wird der Zeuge zur Wahrheit ermahnt und darauf hingewiesen, dass er in den vom Gesetz vorgesehenen Fällen unter Umständen seine Aussage zu beeidigen habe.
(2) Die Vernehmung beginnt damit, dass der Zeuge über Vornamen und Zunamen, Alter, Stand oder Gewerbe und Wohnort befragt wird. Erforderlichenfalls sind ihm Fragen über solche Umstände, die seine Glaubwürdigkeit in der vorliegenden Sache betreffen, insbesondere über seine Beziehungen zu den Parteien vorzulegen.
§ 396 Vernehmung zur Sache
(1) Der Zeuge ist zu veranlassen, dasjenige, was ihm von dem Gegenstand seiner Vernehmung bekannt ist, im Zusammenhang anzugeben.
(2) Zur Aufklärung und zur Vervollständigung der Aussage sowie zur Erforschung des Grundes, auf dem die Wissenschaft des Zeugen beruht, sind nötigenfalls weitere Fragen zu stellen.
(3) Der Vorsitzende hat jedem Mitglied des Gerichts auf Verlangen zu gestatten, Fragen zu stellen.
§ 397 Fragerecht der Parteien
(1) Die Parteien sind berechtigt, dem Zeugen diejenigen Fragen vorlegen zu lassen, die sie zur Aufklärung der Sache oder der Verhältnisse des Zeugen für dienlich erachten.
(2) Der Vorsitzende kann den Parteien gestatten und hat ihren Anwälten auf Verlangen zu gestatten, an den Zeugen unmittelbar Fragen zu richten.
(3) Zweifel über die Zulässigkeit einer Frage entscheidet das Gericht.
§ 398 Wiederholte und nachträgliche Vernehmung
(1) Das Prozessgericht kann nach seinem Ermessen die wiederholte Vernehmung eines Zeugen anordnen.
(2) Hat ein beauftragter oder ersuchter Richter bei der Vernehmung die Stellung der von einer Partei angeregten Frage verweigert, so kann das Prozessgericht die nachträgliche Vernehmung des Zeugen über diese Frage anordnen.
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(3) Bei der wiederholten oder der nachträglichen Vernehmung kann der Richter statt der nochmaligen Beeidigung den Zeugen die Richtigkeit seiner Aussage unter Berufung auf den früher geleisteten Eid versichern lassen.
§ 399 Verzicht auf Zeugen
Die Partei kann auf einen Zeugen, den sie vorgeschlagen hat, verzichten; der Gegner kann aber verlangen, dass der erschienene Zeuge vernommen und, wenn die Vernehmung bereits begonnen hat, dass sie fortgesetzt werde.
§ 400 Befugnisse des mit der Beweisaufnahme betrauten Richters
Der mit der Beweisaufnahme betraute Richter ist ermächtigt, im Falle des Nichterscheinens oder der Zeugnisverweigerung die gesetzlichen Verfügungen zu treffen, auch sie, soweit dies überhaupt zulässig ist, selbst nach Erledigung des Auftrages wieder aufzuheben, über die Zulässigkeit einer dem Zeugen vorgelegten Frage vorläufig zu entscheiden und die nochmalige Vernehmung eines Zeugen vorzunehmen.
§ 401 Zeugenentschädigung
Der Zeuge wird nach dem Justizvergütungs- und -entschädigungsgesetz entschädigt.
Titel 8 Beweis durch Sachverständige § 402 Anwendbarkeit der Vorschriften für Zeugen
Für den Beweis durch Sachverständige gelten die Vorschriften über den Beweis durch Zeugen entsprechend, insoweit nicht in den nachfolgenden Paragraphen abweichende Vorschriften enthalten sind.
§ 403 Beweisantritt
Der Beweis wird durch die Bezeichnung der zu begutachtenden Punkte angetreten.
§ 404 Sachverständigenauswahl
(1) Die Auswahl der zuzuziehenden Sachverständigen und die Bestimmung ihrer Anzahl erfolgt durch das Prozessgericht. Es kann sich auf die Ernennung eines einzigen Sachverständigen beschränken. An Stelle der zuerst ernannten Sachverständigen kann es andere ernennen.
(2) Sind für gewisse Arten von Gutachten Sachverständige öffentlich bestellt, so sollen andere Personen nur dann gewählt werden, wenn besondere Umstände es erfordern.
(3) Das Gericht kann die Parteien auffordern, Personen zu bezeichnen, die geeignet sind, als Sachverständige vernommen zu werden.
(4) Einigen sich die Parteien über bestimmte Personen als Sachverständige, so hat das Gericht dieser Einigung Folge zu geben; das Gericht kann jedoch die Wahl der Parteien auf eine bestimmte Anzahl beschränken.
§ 404a Leitung der Tätigkeit des Sachverständigen
(1) Das Gericht hat die Tätigkeit des Sachverständigen zu leiten und kann ihm für Art und Umfang seiner Tätigkeit Weisungen erteilen.
(2) Soweit es die Besonderheit des Falles erfordert, soll das Gericht den Sachverständigen vor Abfassung der Beweisfrage hören, ihn in seine Aufgabe einweisen und ihm auf Verlangen den Auftrag erläutern.
(3) Bei streitigem Sachverhalt bestimmt das Gericht, welche Tatsachen der Sachverständige der Begutachtung zugrunde legen soll.
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(4) Soweit es erforderlich ist, bestimmt das Gericht, in welchem Umfang der Sachverständige zur Aufklärung der Beweisfrage befugt ist, inwieweit er mit den Parteien in Verbindung treten darf und wann er ihnen die Teilnahme an seinen Ermittlungen zu gestatten hat.
(5) Weisungen an den Sachverständigen sind den Parteien mitzuteilen. Findet ein besonderer Termin zur Einweisung des Sachverständigen statt, so ist den Parteien die Teilnahme zu gestatten.
§ 405 Auswahl durch den mit der Beweisaufnahme betrauten Richter
Das Prozessgericht kann den mit der Beweisaufnahme betrauten Richter zur Ernennung der Sachverständigen ermächtigen. Er hat in diesem Falle die Befugnisse und Pflichten des Prozessgerichts nach den §§ 404, 404a.
§ 406 Ablehnung eines Sachverständigen
(1) Ein Sachverständiger kann aus denselben Gründen, die zur Ablehnung eines Richters berechtigen, abgelehnt werden. Ein Ablehnungsgrund kann jedoch nicht daraus entnommen werden, dass der Sachverständige als Zeuge vernommen worden ist.
(2) Der Ablehnungsantrag ist bei dem Gericht oder Richter, von dem der Sachverständige ernannt ist, vor seiner Vernehmung zu stellen, spätestens jedoch binnen zwei Wochen nach Verkündung oder Zustellung des Beschlusses über die Ernennung. Zu einem späteren Zeitpunkt ist die Ablehnung nur zulässig, wenn der Antragsteller glaubhaft macht, dass er ohne sein Verschulden verhindert war, den Ablehnungsgrund früher geltend zu machen. Der Antrag kann vor der Geschäftsstelle zu Protokoll erklärt werden.
(3) Der Ablehnungsgrund ist glaubhaft zu machen; zur Versicherung an Eides statt darf die Partei nicht zugelassen werden.
(4) Die Entscheidung ergeht von dem im zweiten Absatz bezeichneten Gericht oder Richter durch Beschluss.
(5) Gegen den Beschluss, durch den die Ablehnung für begründet erklärt wird, findet kein Rechtsmittel, gegen den Beschluss, durch den sie für unbegründet erklärt wird, findet sofortige Beschwerde statt.
§ 407 Pflicht zur Erstattung des Gutachtens
(1) Der zum Sachverständigen Ernannte hat der Ernennung Folge zu leisten, wenn er zur Erstattung von Gutachten der erforderten Art öffentlich bestellt ist oder wenn er die Wissenschaft, die Kunst oder das Gewerbe, deren Kenntnis Voraussetzung der Begutachtung ist, öffentlich zum Erwerb ausübt oder wenn er zur Ausübung derselben öffentlich bestellt oder ermächtigt ist.
(2) Zur Erstattung des Gutachtens ist auch derjenige verpflichtet, der sich hierzu vor Gericht bereit erklärt hat.
§ 407a Weitere Pflichten des Sachverständigen
(1) Der Sachverständige hat unverzüglich zu prüfen, ob der Auftrag in sein Fachgebiet fällt und ohne die Hinzuziehung weiterer Sachverständiger erledigt werden kann. Ist das nicht der Fall, so hat der Sachverständige das Gericht unverzüglich zu verständigen.
(2) Der Sachverständige ist nicht befugt, den Auftrag auf einen anderen zu übertragen. Soweit er sich der Mitarbeit einer anderen Person bedient, hat er diese namhaft zu machen und den Umfang ihrer Tätigkeit anzugeben, falls es sich nicht um Hilfsdienste von untergeordneter Bedeutung handelt.
(3) Hat der Sachverständige Zweifel an Inhalt und Umfang des Auftrages, so hat er unverzüglich eine Klärung durch das Gericht herbeizuführen. Erwachsen voraussichtlich Kosten, die erkennbar außer Verhältnis zum Wert des Streitgegenstandes stehen oder einen angeforderten Kostenvorschuss erheblich übersteigen, so hat der Sachverständige rechtzeitig hierauf hinzuweisen.
(4) Der Sachverständige hat auf Verlangen des Gerichts die Akten und sonstige für die Begutachtung beigezogene Unterlagen sowie Untersuchungsergebnisse unverzüglich herauszugeben oder mitzuteilen. Kommt er dieser Pflicht nicht nach, so ordnet das Gericht die Herausgabe an.
(5) Das Gericht soll den Sachverständigen auf seine Pflichten hinweisen.
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§ 408 Gutachtenverweigerungsrecht
(1) Dieselben Gründe, die einen Zeugen berechtigen, das Zeugnis zu verweigern, berechtigen einen Sachverständigen zur Verweigerung des Gutachtens. Das Gericht kann auch aus anderen Gründen einen Sachverständigen von der Verpflichtung zur Erstattung des Gutachtens entbinden.
(2) Für die Vernehmung eines Richters, Beamten oder einer anderen Person des öffentlichen Dienstes als Sachverständigen gelten die besonderen beamtenrechtlichen Vorschriften. Für die Mitglieder der Bundes- oder einer Landesregierung gelten die für sie maßgebenden besonderen Vorschriften.
(3) Wer bei einer richterlichen Entscheidung mitgewirkt hat, soll über Fragen, die den Gegenstand der Entscheidung gebildet haben, nicht als Sachverständiger vernommen werden.
§ 409 Folgen des Ausbleibens oder der Gutachtenverweigerung
(1) Wenn ein Sachverständiger nicht erscheint oder sich weigert, ein Gutachten zu erstatten, obgleich er dazu verpflichtet ist, oder wenn er Akten oder sonstige Unterlagen zurückbehält, werden ihm die dadurch verursachten Kosten auferlegt. Zugleich wird gegen ihn ein Ordnungsgeld festgesetzt. Im Falle wiederholten Ungehorsams kann das Ordnungsgeld noch einmal festgesetzt werden.
(2) Gegen den Beschluss findet sofortige Beschwerde statt.
§ 410 Sachverständigenbeeidigung
(1) Der Sachverständige wird vor oder nach Erstattung des Gutachtens beeidigt. Die Eidesnorm geht dahin, dass der Sachverständige das von ihm erforderte Gutachten unparteiisch und nach bestem Wissen und Gewissen erstatten werde oder erstattet habe.
(2) Ist der Sachverständige für die Erstattung von Gutachten der betreffenden Art im Allgemeinen beeidigt, so genügt die Berufung auf den geleisteten Eid; sie kann auch in einem schriftlichen Gutachten erklärt werden.
§ 411 Schriftliches Gutachten
(1) Wird schriftliche Begutachtung angeordnet, soll das Gericht dem Sachverständigen eine Frist setzen, innerhalb derer er das von ihm unterschriebene Gutachten zu übermitteln hat.
(2) Versäumt ein zur Erstattung des Gutachtens verpflichteter Sachverständiger die Frist, so kann gegen ihn ein Ordnungsgeld festgesetzt werden. Das Ordnungsgeld muss vorher unter Setzung einer Nachfrist angedroht werden. Im Falle wiederholter Fristversäumnis kann das Ordnungsgeld in der gleichen Weise noch einmal festgesetzt werden. § 409 Abs. 2 gilt entsprechend.
(3) Das Gericht kann das Erscheinen des Sachverständigen anordnen, damit er das schriftliche Gutachten erläutere.
(4) Die Parteien haben dem Gericht innerhalb eines angemessenen Zeitraums ihre Einwendungen gegen das Gutachten, die Begutachtung betreffende Anträge und Ergänzungsfragen zu dem schriftlichen Gutachten mitzuteilen. Das Gericht kann ihnen hierfür eine Frist setzen; § 296 Abs. 1, 4 gilt entsprechend.
§ 411a Verwertung von Sachverständigengutachten aus anderen Verfahren
Die schriftliche Begutachtung kann durch die Verwertung eines gerichtlich oder staatsanwaltschaftlich eingeholten Sachverständigengutachtens aus einem anderen Verfahren ersetzt werden.
§ 412 Neues Gutachten
(1) Das Gericht kann eine neue Begutachtung durch dieselben oder durch andere Sachverständige anordnen, wenn es das Gutachten für ungenügend erachtet.
(2) Das Gericht kann die Begutachtung durch einen anderen Sachverständigen anordnen, wenn ein Sachverständiger nach Erstattung des Gutachtens mit Erfolg abgelehnt ist.
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§ 413 Sachverständigenvergütung
Der Sachverständige erhält eine Vergütung nach dem Justizvergütungs- und -entschädigungsgesetz.
§ 414 Sachverständige Zeugen
Insoweit zum Beweis vergangener Tatsachen oder Zustände, zu deren Wahrnehmung eine besondere Sachkunde erforderlich war, sachkundige Personen zu vernehmen sind, kommen die Vorschriften über den Zeugenbeweis zur Anwendung.
Titel 9 Beweis durch Urkunden § 415 Beweiskraft öffentlicher Urkunden über Erklärungen
(1) Urkunden, die von einer öffentlichen Behörde innerhalb der Grenzen ihrer Amtsbefugnisse oder von einer mit öffentlichem Glauben versehenen Person innerhalb des ihr zugewiesenen Geschäftskreises in der vorgeschriebenen Form aufgenommen sind (öffentliche Urkunden), begründen, wenn sie über eine vor der Behörde oder der Urkundsperson abgegebene Erklärung errichtet sind, vollen Beweis des durch die Behörde oder die Urkundsperson beurkundeten Vorganges.
(2) Der Beweis, dass der Vorgang unrichtig beurkundet sei, ist zulässig.
§ 416 Beweiskraft von Privaturkunden
Privaturkunden begründen, sofern sie von den Ausstellern unterschrieben oder mittels notariell beglaubigten Handzeichens unterzeichnet sind, vollen Beweis dafür, dass die in ihnen enthaltenen Erklärungen von den Ausstellern abgegeben sind.
§ 416a Beweiskraft des Ausdrucks eines öffentlichen elektronischen Dokuments
Der mit einem Beglaubigungsvermerk versehene Ausdruck eines öffentlichen elektronischen Dokuments gemäß § 371a Abs. 2, den eine öffentliche Behörde innerhalb der Grenzen ihrer Amtsbefugnisse oder eine mit öffentlichem Glauben versehene Person innerhalb des ihr zugewiesenen Geschäftskreises in der vorgeschriebenen Form erstellt hat, sowie der Ausdruck eines gerichtlichen elektronischen Dokuments, der einen Vermerk des zuständigen Gerichts gemäß § 298 Abs. 2 enthält, stehen einer öffentlichen Urkunde in beglaubigter Abschrift gleich.
§ 417 Beweiskraft öffentlicher Urkunden über amtliche Anordnung, Verfügung oder Entscheidung
Die von einer Behörde ausgestellten, eine amtliche Anordnung, Verfügung oder Entscheidung enthaltenden öffentlichen Urkunden begründen vollen Beweis ihres Inhalts.
§ 418 Beweiskraft öffentlicher Urkunden mit anderem Inhalt
(1) Öffentliche Urkunden, die einen anderen als den in den §§ 415, 417 bezeichneten Inhalt haben, begründen vollen Beweis der darin bezeugten Tatsachen.
(2) Der Beweis der Unrichtigkeit der bezeugten Tatsachen ist zulässig, sofern nicht die Landesgesetze diesen Beweis ausschließen oder beschränken.
(3) Beruht das Zeugnis nicht auf eigener Wahrnehmung der Behörde oder der Urkundsperson, so ist die Vorschrift des ersten Absatzes nur dann anzuwenden, wenn sich aus den Landesgesetzen ergibt, dass die Beweiskraft des Zeugnisses von der eigenen Wahrnehmung unabhängig ist.
§ 419 Beweiskraft mangelbehafteter Urkunden
Inwiefern Durchstreichungen, Radierungen, Einschaltungen oder sonstige äußere Mängel die Beweiskraft einer Urkunde ganz oder teilweise aufheben oder mindern, entscheidet das Gericht nach freier Überzeugung.
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§ 420 Vorlegung durch Beweisführer; Beweisantritt
Der Beweis wird durch die Vorlegung der Urkunde angetreten.
§ 421 Vorlegung durch den Gegner; Beweisantritt
Befindet sich die Urkunde nach der Behauptung des Beweisführers in den Händen des Gegners, so wird der Beweis durch den Antrag angetreten, dem Gegner die Vorlegung der Urkunde aufzugeben.
§ 422 Vorlegungspflicht des Gegners nach bürgerlichem Recht
Der Gegner ist zur Vorlegung der Urkunde verpflichtet, wenn der Beweisführer nach den Vorschriften des bürgerlichen Rechts die Herausgabe oder die Vorlegung der Urkunde verlangen kann.
§ 423 Vorlegungspflicht des Gegners bei Bezugnahme
Der Gegner ist auch zur Vorlegung der in seinen Händen befindlichen Urkunden verpflichtet, auf die er im Prozess zur Beweisführung Bezug genommen hat, selbst wenn es nur in einem vorbereitenden Schriftsatz geschehen ist.
§ 424 Antrag bei Vorlegung durch Gegner
Der Antrag soll enthalten: 1. die Bezeichnung der Urkunde; 2. die Bezeichnung der Tatsachen, die durch die Urkunde bewiesen werden sollen; 3. die möglichst vollständige Bezeichnung des Inhalts der Urkunde; 4. die Angabe der Umstände, auf welche die Behauptung sich stützt, dass die Urkunde sich in dem Besitz des
Gegners befindet; 5. die Bezeichnung des Grundes, der die Verpflichtung zur Vorlegung der Urkunde ergibt. Der Grund ist
glaubhaft zu machen.
§ 425 Anordnung der Vorlegung durch Gegner
Erachtet das Gericht die Tatsache, die durch die Urkunde bewiesen werden soll, für erheblich und den Antrag für begründet, so ordnet es, wenn der Gegner zugesteht, dass die Urkunde sich in seinen Händen befinde, oder wenn der Gegner sich über den Antrag nicht erklärt, die Vorlegung der Urkunde an.
§ 426 Vernehmung des Gegners über den Verbleib
Bestreitet der Gegner, dass die Urkunde sich in seinem Besitz befinde, so ist er über ihren Verbleib zu vernehmen. In der Ladung zum Vernehmungstermin ist ihm aufzugeben, nach dem Verbleib der Urkunde sorgfältig zu forschen. Im Übrigen gelten die Vorschriften der §§ 449 bis 454 entsprechend. Gelangt das Gericht zu der Überzeugung, dass sich die Urkunde im Besitz des Gegners befindet, so ordnet es die Vorlegung an.
§ 427 Folgen der Nichtvorlegung durch Gegner
Kommt der Gegner der Anordnung, die Urkunde vorzulegen, nicht nach oder gelangt das Gericht im Falle des § 426 zu der Überzeugung, dass er nach dem Verbleib der Urkunde nicht sorgfältig geforscht habe, so kann eine vom Beweisführer beigebrachte Abschrift der Urkunde als richtig angesehen werden. Ist eine Abschrift der Urkunde nicht beigebracht, so können die Behauptungen des Beweisführers über die Beschaffenheit und den Inhalt der Urkunde als bewiesen angenommen werden.
§ 428 Vorlegung durch Dritte; Beweisantritt
Befindet sich die Urkunde nach der Behauptung des Beweisführers im Besitz eines Dritten, so wird der Beweis durch den Antrag angetreten, zur Herbeischaffung der Urkunde eine Frist zu bestimmen oder eine Anordnung nach § 142 zu erlassen.
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§ 429 Vorlegungspflicht Dritter
Der Dritte ist aus denselben Gründen wie der Gegner des Beweisführers zur Vorlegung einer Urkunde verpflichtet; er kann zur Vorlegung nur im Wege der Klage genötigt werden. § 142 bleibt unberührt.
§ 430 Antrag bei Vorlegung durch Dritte
Zur Begründung des nach § 428 zu stellenden Antrages hat der Beweisführer den Erfordernissen des § 424 Nr. 1 bis 3, 5 zu genügen und außerdem glaubhaft zu machen, dass die Urkunde sich in den Händen des Dritten befinde.
§ 431 Vorlegungsfrist bei Vorlegung durch Dritte
(1) Ist die Tatsache, die durch die Urkunde bewiesen werden soll, erheblich und entspricht der Antrag den Vorschriften des vorstehenden Paragraphen, so hat das Gericht durch Beschluss eine Frist zur Vorlegung der Urkunde zu bestimmen.
(2) Der Gegner kann die Fortsetzung des Verfahrens vor dem Ablauf der Frist beantragen, wenn die Klage gegen den Dritten erledigt ist oder wenn der Beweisführer die Erhebung der Klage oder die Betreibung des Prozesses oder der Zwangsvollstreckung verzögert.
§ 432 Vorlegung durch Behörden oder Beamte; Beweisantritt
(1) Befindet sich die Urkunde nach der Behauptung des Beweisführers in den Händen einer öffentlichen Behörde oder eines öffentlichen Beamten, so wird der Beweis durch den Antrag angetreten, die Behörde oder den Beamten um die Mitteilung der Urkunde zu ersuchen.
(2) Diese Vorschrift ist auf Urkunden, welche die Parteien nach den gesetzlichen Vorschriften ohne Mitwirkung des Gerichts zu beschaffen imstande sind, nicht anzuwenden.
(3) Verweigert die Behörde oder der Beamte die Mitteilung der Urkunde in Fällen, in denen eine Verpflichtung zur Vorlegung auf § 422 gestützt wird, so gelten die Vorschriften der §§ 428 bis 431.
§ 433
(weggefallen)
§ 434 Vorlegung vor beauftragtem oder ersuchtem Richter
Wenn eine Urkunde bei der mündlichen Verhandlung wegen erheblicher Hindernisse nicht vorgelegt werden kann oder wenn es bedenklich erscheint, sie wegen ihrer Wichtigkeit und der Besorgnis ihres Verlustes oder ihrer Beschädigung vorzulegen, so kann das Prozessgericht anordnen, dass sie vor einem seiner Mitglieder oder vor einem anderen Gericht vorgelegt werde.
§ 435 Vorlegung öffentlicher Urkunden in Urschrift oder beglaubigter Abschrift
Eine öffentliche Urkunde kann in Urschrift oder in einer beglaubigten Abschrift, die hinsichtlich der Beglaubigung die Erfordernisse einer öffentlichen Urkunde an sich trägt, vorgelegt werden; das Gericht kann jedoch anordnen, dass der Beweisführer die Urschrift vorlege oder die Tatsachen angebe und glaubhaft mache, die ihn an der Vorlegung der Urschrift verhindern. Bleibt die Anordnung erfolglos, so entscheidet das Gericht nach freier Überzeugung, welche Beweiskraft der beglaubigten Abschrift beizulegen sei.
§ 436 Verzicht nach Vorlegung
Der Beweisführer kann nach der Vorlegung einer Urkunde nur mit Zustimmung des Gegners auf dieses Beweismittel verzichten.
§ 437 Echtheit inländischer öffentlicher Urkunden
(1) Urkunden, die nach Form und Inhalt als von einer öffentlichen Behörde oder von einer mit öffentlichem Glauben versehenen Person errichtet sich darstellen, haben die Vermutung der Echtheit für sich.
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(2) Das Gericht kann, wenn es die Echtheit für zweifelhaft hält, auch von Amts wegen die Behörde oder die Person, von der die Urkunde errichtet sein soll, zu einer Erklärung über die Echtheit veranlassen.
§ 438 Echtheit ausländischer öffentlicher Urkunden
(1) Ob eine Urkunde, die als von einer ausländischen Behörde oder von einer mit öffentlichem Glauben versehenen Person des Auslandes errichtet sich darstellt, ohne näheren Nachweis als echt anzusehen sei, hat das Gericht nach den Umständen des Falles zu ermessen.
(2) Zum Beweis der Echtheit einer solchen Urkunde genügt die Legalisation durch einen Konsul oder Gesandten des Bundes.
§ 439 Erklärung über Echtheit von Privaturkunden
(1) Über die Echtheit einer Privaturkunde hat sich der Gegner des Beweisführers nach der Vorschrift des § 138 zu erklären.
(2) Befindet sich unter der Urkunde eine Namensunterschrift, so ist die Erklärung auf die Echtheit der Unterschrift zu richten.
(3) Wird die Erklärung nicht abgegeben, so ist die Urkunde als anerkannt anzusehen, wenn nicht die Absicht, die Echtheit bestreiten zu wollen, aus den übrigen Erklärungen der Partei hervorgeht.
§ 440 Beweis der Echtheit von Privaturkunden
(1) Die Echtheit einer nicht anerkannten Privaturkunde ist zu beweisen.
(2) Steht die Echtheit der Namensunterschrift fest oder ist das unter einer Urkunde befindliche Handzeichen notariell beglaubigt, so hat die über der Unterschrift oder dem Handzeichen stehende Schrift die Vermutung der Echtheit für sich.
§ 441 Schriftvergleichung
(1) Der Beweis der Echtheit oder Unechtheit einer Urkunde kann auch durch Schriftvergleichung geführt werden.
(2) In diesem Fall hat der Beweisführer zur Vergleichung geeignete Schriften vorzulegen oder ihre Mitteilung nach der Vorschrift des § 432 zu beantragen und erforderlichenfalls den Beweis ihrer Echtheit anzutreten.
(3) Befinden sich zur Vergleichung geeignete Schriften in den Händen des Gegners, so ist dieser auf Antrag des Beweisführers zur Vorlegung verpflichtet. Die Vorschriften der §§ 421 bis 426 gelten entsprechend. Kommt der Gegner der Anordnung, die zur Vergleichung geeigneten Schriften vorzulegen, nicht nach oder gelangt das Gericht im Falle des § 426 zu der Überzeugung, dass der Gegner nach dem Verbleib der Schriften nicht sorgfältig geforscht habe, so kann die Urkunde als echt angesehen werden.
(4) Macht der Beweisführer glaubhaft, dass in den Händen eines Dritten geeignete Vergleichungsschriften sich befinden, deren Vorlegung er im Wege der Klage zu erwirken imstande sei, so gelten die Vorschriften des § 431 entsprechend.
§ 442 Würdigung der Schriftvergleichung
Über das Ergebnis der Schriftvergleichung hat das Gericht nach freier Überzeugung, geeignetenfalls nach Anhörung von Sachverständigen, zu entscheiden.
§ 443 Verwahrung verdächtiger Urkunden
Urkunden, deren Echtheit bestritten ist oder deren Inhalt verändert sein soll, werden bis zur Erledigung des Rechtsstreits auf der Geschäftsstelle verwahrt, sofern nicht ihre Auslieferung an eine andere Behörde im Interesse der öffentlichen Ordnung erforderlich ist.
§ 444 Folgen der Beseitigung einer Urkunde
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Ist eine Urkunde von einer Partei in der Absicht, ihre Benutzung dem Gegner zu entziehen, beseitigt oder zur Benutzung untauglich gemacht, so können die Behauptungen des Gegners über die Beschaffenheit und den Inhalt der Urkunde als bewiesen angesehen werden.
Titel 10 Beweis durch Parteivernehmung § 445 Vernehmung des Gegners; Beweisantritt
(1) Eine Partei, die den ihr obliegenden Beweis mit anderen Beweismitteln nicht vollständig geführt oder andere Beweismittel nicht vorgebracht hat, kann den Beweis dadurch antreten, dass sie beantragt, den Gegner über die zu beweisenden Tatsachen zu vernehmen.
(2) Der Antrag ist nicht zu berücksichtigen, wenn er Tatsachen betrifft, deren Gegenteil das Gericht für erwiesen erachtet.
§ 446 Weigerung des Gegners
Lehnt der Gegner ab, sich vernehmen zu lassen, oder gibt er auf Verlangen des Gerichts keine Erklärung ab, so hat das Gericht unter Berücksichtigung der gesamten Sachlage, insbesondere der für die Weigerung vorgebrachten Gründe, nach freier Überzeugung zu entscheiden, ob es die behauptete Tatsache als erwiesen ansehen will.
§ 447 Vernehmung der beweispflichtigen Partei auf Antrag
Das Gericht kann über eine streitige Tatsache auch die beweispflichtige Partei vernehmen, wenn eine Partei es beantragt und die andere damit einverstanden ist.
§ 448 Vernehmung von Amts wegen
Auch ohne Antrag einer Partei und ohne Rücksicht auf die Beweislast kann das Gericht, wenn das Ergebnis der Verhandlungen und einer etwaigen Beweisaufnahme nicht ausreicht, um seine Überzeugung von der Wahrheit oder Unwahrheit einer zu erweisenden Tatsache zu begründen, die Vernehmung einer Partei oder beider Parteien über die Tatsache anordnen.
§ 449 Vernehmung von Streitgenossen
Besteht die zu vernehmende Partei aus mehreren Streitgenossen, so bestimmt das Gericht nach Lage des Falles, ob alle oder nur einzelne Streitgenossen zu vernehmen sind.
§ 450 Beweisbeschluss
(1) Die Vernehmung einer Partei wird durch Beweisbeschluss angeordnet. Die Partei ist, wenn sie bei der Verkündung des Beschlusses nicht persönlich anwesend ist, zu der Vernehmung unter Mitteilung des Beweisbeschlusses von Amts wegen zu laden. Die Ladung ist der Partei selbst mitzuteilen, auch wenn sie einen Prozessbevollmächtigten bestellt hat; der Zustellung bedarf die Ladung nicht.
(2) Die Ausführung des Beschlusses kann ausgesetzt werden, wenn nach seinem Erlass über die zu beweisende Tatsache neue Beweismittel vorgebracht werden. Nach Erhebung der neuen Beweise ist von der Parteivernehmung abzusehen, wenn das Gericht die Beweisfrage für geklärt erachtet.
§ 451 Ausführung der Vernehmung
Für die Vernehmung einer Partei gelten die Vorschriften der §§ 375, 376, 395 Abs. 1, Abs. 2 Satz 1 und der §§ 396, 397, 398 entsprechend.
§ 452 Beeidigung der Partei
(1) Reicht das Ergebnis der unbeeidigten Aussage einer Partei nicht aus, um das Gericht von der Wahrheit oder Unwahrheit der zu erweisenden Tatsache zu überzeugen, so kann es anordnen, dass die Partei ihre Aussage
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zu beeidigen habe. Waren beide Parteien vernommen, so kann die Beeidigung der Aussage über dieselben Tatsachen nur von einer Partei gefordert werden.
(2) Die Eidesnorm geht dahin, dass die Partei nach bestem Wissen die reine Wahrheit gesagt und nichts verschwiegen habe.
(3) Der Gegner kann auf die Beeidigung verzichten.
(4) Die Beeidigung einer Partei, die wegen wissentlicher Verletzung der Eidespflicht rechtskräftig verurteilt ist, ist unzulässig.
§ 453 Beweiswürdigung bei Parteivernehmung
(1) Das Gericht hat die Aussage der Partei nach § 286 frei zu würdigen.
(2) Verweigert die Partei die Aussage oder den Eid, so gilt § 446 entsprechend.
§ 454 Ausbleiben der Partei
(1) Bleibt die Partei in dem zu ihrer Vernehmung oder Beeidigung bestimmten Termin aus, so entscheidet das Gericht unter Berücksichtigung aller Umstände, insbesondere auch etwaiger von der Partei für ihr Ausbleiben angegebener Gründe, nach freiem Ermessen, ob die Aussage als verweigert anzusehen ist.
(2) War der Termin zur Vernehmung oder Beeidigung der Partei vor dem Prozessgericht bestimmt, so ist im Falle ihres Ausbleibens, wenn nicht das Gericht die Anberaumung eines neuen Vernehmungstermins für geboten erachtet, zur Hauptsache zu verhandeln.
§ 455 Prozessunfähige
(1) Ist eine Partei nicht prozessfähig, so ist vorbehaltlich der Vorschrift im Absatz 2 ihr gesetzlicher Vertreter zu vernehmen. Sind mehrere gesetzliche Vertreter vorhanden, so gilt § 449 entsprechend.
(2) Minderjährige, die das 16. Lebensjahr vollendet haben, können über Tatsachen, die in ihren eigenen Handlungen bestehen oder Gegenstand ihrer Wahrnehmung gewesen sind, vernommen und auch nach § 452 beeidigt werden, wenn das Gericht dies nach den Umständen des Falles für angemessen erachtet. Das Gleiche gilt von einer prozessfähigen Person, die in dem Rechtsstreit durch einen Betreuer oder Pfleger vertreten wird.
§§ 456 bis 477 (weggefallen)
Titel 11 Abnahme von Eiden und Bekräftigungen § 478 Eidesleistung in Person
Der Eid muss von dem Schwurpflichtigen in Person geleistet werden.
§ 479 Eidesleistung vor beauftragtem oder ersuchtem Richter
(1) Das Prozessgericht kann anordnen, dass der Eid vor einem seiner Mitglieder oder vor einem anderen Gericht geleistet werde, wenn der Schwurpflichtige am Erscheinen vor dem Prozessgericht verhindert ist oder sich in großer Entfernung von dessen Sitz aufhält und die Leistung des Eides nach § 128a Abs. 2 nicht stattfindet.
(2) Der Bundespräsident leistet den Eid in seiner Wohnung vor einem Mitglied des Prozessgerichts oder vor einem anderen Gericht.
§ 480 Eidesbelehrung
Vor der Leistung des Eides hat der Richter den Schwurpflichtigen in angemessener Weise über die Bedeutung des Eides sowie darüber zu belehren, dass er den Eid mit religiöser oder ohne religiöse Beteuerung leisten kann.
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§ 481 Eidesleistung; Eidesformel
(1) Der Eid mit religiöser Beteuerung wird in der Weise geleistet, dass der Richter die Eidesnorm mit der Eingangsformel: "Sie schwören bei Gott dem Allmächtigen und Allwissenden" vorspricht und der Schwurpflichtige darauf die Worte spricht (Eidesformel): "Ich schwöre es, so wahr mir Gott helfe."
(2) Der Eid ohne religiöse Beteuerung wird in der Weise geleistet, dass der Richter die Eidesnorm mit der Eingangsformel: "Sie schwören" vorspricht und der Schwurpflichtige darauf die Worte spricht (Eidesformel): "Ich schwöre es."
(3) Gibt der Schwurpflichtige an, dass er als Mitglied einer Religions- oder Bekenntnisgemeinschaft eine Beteuerungsformel dieser Gemeinschaft verwenden wolle, so kann er diese dem Eid anfügen.
(4) Der Schwörende soll bei der Eidesleistung die rechte Hand erheben.
(5) Sollen mehrere Personen gleichzeitig einen Eid leisten, so wird die Eidesformel von jedem Schwurpflichtigen einzeln gesprochen.
§ 482
(weggefallen)
§ 483 Eidesleistung sprach- oder hörbehinderter Personen
(1) Eine hör- oder sprachbehinderte Person leistet den Eid nach ihrer Wahl mittels Nachsprechens der Eidesformel, mittels Abschreibens und Unterschreibens der Eidesformel oder mit Hilfe einer die Verständigung ermöglichenden Person, die vom Gericht hinzuzuziehen ist. Das Gericht hat die geeigneten technischen Hilfsmittel bereitzustellen. Die hör- oder sprachbehinderte Person ist auf ihr Wahlrecht hinzuweisen.
(2) Das Gericht kann eine schriftliche Eidesleistung verlangen oder die Hinzuziehung einer die Verständigung ermöglichenden Person anordnen, wenn die hör- oder sprachbehinderte Person von ihrem Wahlrecht nach Absatz 1 keinen Gebrauch gemacht hat oder eine Eidesleistung in der nach Absatz 1 gewählten Form nicht oder nur mit unverhältnismäßigem Aufwand möglich ist.
§ 484 Eidesgleiche Bekräftigung
(1) Gibt der Schwurpflichtige an, dass er aus Glaubens- oder Gewissensgründen keinen Eid leisten wolle, so hat er eine Bekräftigung abzugeben. Diese Bekräftigung steht dem Eid gleich; hierauf ist der Verpflichtete hinzuweisen.
(2) Die Bekräftigung wird in der Weise abgegeben, dass der Richter die Eidesnorm als Bekräftigungsnorm mit der Eingangsformel: "Sie bekräftigen im Bewusstsein Ihrer Verantwortung vor Gericht" vorspricht und der Verpflichtete darauf spricht: "Ja".
(3) § 481 Abs. 3, 5, § 483 gelten entsprechend.
Titel 12 Selbständiges Beweisverfahren § 485 Zulässigkeit
(1) Während oder außerhalb eines Streitverfahrens kann auf Antrag einer Partei die Einnahme des Augenscheins, die Vernehmung von Zeugen oder die Begutachtung durch einen Sachverständigen angeordnet werden, wenn
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der Gegner zustimmt oder zu besorgen ist, dass das Beweismittel verloren geht oder seine Benutzung erschwert wird.
(2) Ist ein Rechtsstreit noch nicht anhängig, kann eine Partei die schriftliche Begutachtung durch einen Sachverständigen beantragen, wenn sie ein rechtliches Interesse daran hat, dass 1. der Zustand einer Person oder der Zustand oder Wert einer Sache, 2. die Ursache eines Personenschadens, Sachschadens oder Sachmangels, 3. der Aufwand für die Beseitigung eines Personenschadens, Sachschadens oder Sachmangels festgestellt wird. Ein rechtliches Interesse ist anzunehmen, wenn die Feststellung der Vermeidung eines Rechtsstreits dienen kann.
(3) Soweit eine Begutachtung bereits gerichtlich angeordnet worden ist, findet eine neue Begutachtung nur statt, wenn die Voraussetzungen des § 412 erfüllt sind.
§ 486 Zuständiges Gericht
(1) Ist ein Rechtsstreit anhängig, so ist der Antrag bei dem Prozessgericht zu stellen.
(2) Ist ein Rechtsstreit noch nicht anhängig, so ist der Antrag bei dem Gericht zu stellen, das nach dem Vortrag des Antragstellers zur Entscheidung in der Hauptsache berufen wäre. In dem nachfolgenden Streitverfahren kann sich der Antragsteller auf die Unzuständigkeit des Gerichts nicht berufen.
(3) In Fällen dringender Gefahr kann der Antrag auch bei dem Amtsgericht gestellt werden, in dessen Bezirk die zu vernehmende oder zu begutachtende Person sich aufhält oder die in Augenschein zu nehmende oder zu begutachtende Sache sich befindet.
(4) Der Antrag kann vor der Geschäftsstelle zu Protokoll erklärt werden.
§ 487 Inhalt des Antrages
Der Antrag muss enthalten: 1. die Bezeichnung des Gegners; 2. die Bezeichnung der Tatsachen, über die Beweis erhoben werden soll; 3. die Benennung der Zeugen oder die Bezeichnung der übrigen nach § 485 zulässigen Beweismittel; 4. die Glaubhaftmachung der Tatsachen, die die Zulässigkeit des selbständigen Beweisverfahrens und die
Zuständigkeit des Gerichts begründen sollen.
§§ 488 und 489 (weggefallen)
§ 490 Entscheidung über den Antrag
(1) Über den Antrag entscheidet das Gericht durch Beschluss.
(2) In dem Beschluss, durch welchen dem Antrag stattgegeben wird, sind die Tatsachen, über die der Beweis zu erheben ist, und die Beweismittel unter Benennung der zu vernehmenden Zeugen und Sachverständigen zu bezeichnen. Der Beschluss ist nicht anfechtbar.
§ 491 Ladung des Gegners
(1) Der Gegner ist, sofern es nach den Umständen des Falles geschehen kann, unter Zustellung des Beschlusses und einer Abschrift des Antrags zu dem für die Beweisaufnahme bestimmten Termin so zeitig zu laden, dass er in diesem Termin seine Rechte wahrzunehmen vermag.
(2) Die Nichtbefolgung dieser Vorschrift steht der Beweisaufnahme nicht entgegen.
§ 492 Beweisaufnahme
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(1) Die Beweisaufnahme erfolgt nach den für die Aufnahme des betreffenden Beweismittels überhaupt geltenden Vorschriften.
(2) Das Protokoll über die Beweisaufnahme ist bei dem Gericht, das sie angeordnet hat, aufzubewahren.
(3) Das Gericht kann die Parteien zur mündlichen Erörterung laden, wenn eine Einigung zu erwarten ist; ein Vergleich ist zu gerichtlichem Protokoll zu nehmen.
§ 493 Benutzung im Prozess
(1) Beruft sich eine Partei im Prozess auf Tatsachen, über die selbständig Beweis erhoben worden ist, so steht die selbständige Beweiserhebung einer Beweisaufnahme vor dem Prozessgericht gleich.
(2) War der Gegner in einem Termin im selbständigen Beweisverfahren nicht erschienen, so kann das Ergebnis nur benutzt werden, wenn der Gegner rechtzeitig geladen war.
§ 494 Unbekannter Gegner
(1) Wird von dem Beweisführer ein Gegner nicht bezeichnet, so ist der Antrag nur dann zulässig, wenn der Beweisführer glaubhaft macht, dass er ohne sein Verschulden außerstande sei, den Gegner zu bezeichnen.
(2) Wird dem Antrag stattgegeben, so kann das Gericht dem unbekannten Gegner zur Wahrnehmung seiner Rechte bei der Beweisaufnahme einen Vertreter bestellen.
§ 494a Frist zur Klageerhebung
(1) Ist ein Rechtsstreit nicht anhängig, hat das Gericht nach Beendigung der Beweiserhebung auf Antrag ohne mündliche Verhandlung anzuordnen, dass der Antragsteller binnen einer zu bestimmenden Frist Klage zu erheben hat.
(2) Kommt der Antragsteller dieser Anordnung nicht nach, hat das Gericht auf Antrag durch Beschluss auszusprechen, dass er die dem Gegner entstandenen Kosten zu tragen hat. Die Entscheidung unterliegt der sofortigen Beschwerde.
Abschnitt 2 Verfahren vor den Amtsgerichten § 495 Anzuwendende Vorschriften
(1) Für das Verfahren vor den Amtsgerichten gelten die Vorschriften über das Verfahren vor den Landgerichten, soweit nicht aus den allgemeinen Vorschriften des Buches 1, aus den nachfolgenden besonderen Bestimmungen und aus der Verfassung der Amtsgerichte sich Abweichungen ergeben.
§ 495a Verfahren nach billigem Ermessen
Das Gericht kann sein Verfahren nach billigem Ermessen bestimmen, wenn der Streitwert 600 Euro nicht übersteigt. Auf Antrag muss mündlich verhandelt werden.
§ 496 Einreichung von Schriftsätzen; Erklärungen zu Protokoll
Die Klage, die Klageerwiderung sowie sonstige Anträge und Erklärungen einer Partei, die zugestellt werden sollen, sind bei dem Gericht schriftlich einzureichen oder mündlich zum Protokoll der Geschäftsstelle anzubringen.
§ 497 Ladungen
(1) Die Ladung des Klägers zu dem auf die Klage bestimmten Termin ist, sofern nicht das Gericht die Zustellung anordnet, ohne besondere Form mitzuteilen. § 270 Satz 2 gilt entsprechend.
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(2) Die Ladung einer Partei ist nicht erforderlich, wenn der Termin der Partei bei Einreichung oder Anbringung der Klage oder des Antrages, auf Grund dessen die Terminsbestimmung stattfindet, mitgeteilt worden ist. Die Mitteilung ist zu den Akten zu vermerken.
§ 498 Zustellung des Protokolls über die Klage
Ist die Klage zum Protokoll der Geschäftsstelle angebracht worden, so wird an Stelle der Klageschrift das Protokoll zugestellt.
§ 499 Belehrungen
(1) Mit der Zustellung der Klageschrift oder des Protokolls über die Klage ist der Beklagte darüber zu belehren, dass eine Vertretung durch einen Rechtsanwalt nicht vorgeschrieben ist.
(2) Mit der Aufforderung nach § 276 ist der Beklagte auch über die Folgen eines schriftlich abgegebenen Anerkenntnisses zu belehren.
§§ 499a bis 503 (weggefallen)
§ 504 Hinweis bei Unzuständigkeit des Amtsgerichts
Ist das Amtsgericht sachlich oder örtlich unzuständig, so hat es den Beklagten vor der Verhandlung zur Hauptsache darauf und auf die Folgen einer rügelosen Einlassung zur Hauptsache hinzuweisen.
§ 505
(weggefallen)
§ 506 Nachträgliche sachliche Unzuständigkeit
(1) Wird durch Widerklage oder durch Erweiterung des Klageantrages (§ 264 Nr. 2, 3) ein Anspruch erhoben, der zur Zuständigkeit der Landgerichte gehört, oder wird nach § 256 Abs. 2 die Feststellung eines Rechtsverhältnisses beantragt, für das die Landgerichte zuständig sind, so hat das Amtsgericht, sofern eine Partei vor weiterer Verhandlung zur Hauptsache darauf anträgt, durch Beschluss sich für unzuständig zu erklären und den Rechtsstreit an das Landgericht zu verweisen.
(2) Die Vorschriften des § 281 Abs. 2, Abs. 3 Satz 1 gelten entsprechend.
§§ 507 bis 509 (weggefallen)
§ 510 Erklärung über Urkunden
Wegen unterbliebener Erklärung ist eine Urkunde nur dann als anerkannt anzusehen, wenn die Partei durch das Gericht zur Erklärung über die Echtheit der Urkunde aufgefordert ist.
§ 510a Inhalt des Protokolls
Andere Erklärungen einer Partei als Geständnisse und Erklärungen über einen Antrag auf Parteivernehmung sind im Protokoll festzustellen, soweit das Gericht es für erforderlich hält.
§ 510b Urteil auf Vornahme einer Handlung
Erfolgt die Verurteilung zur Vornahme einer Handlung, so kann der Beklagte zugleich auf Antrag des Klägers für den Fall, dass die Handlung nicht binnen einer zu bestimmenden Frist vorgenommen ist, zur Zahlung einer Entschädigung verurteilt werden; das Gericht hat die Entschädigung nach freiem Ermessen festzusetzen.
§ 510c
(weggefallen)
Buch 3
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Rechtsmittel
Abschnitt 1 Berufung § 511 Statthaftigkeit der Berufung
(1) Die Berufung findet gegen die im ersten Rechtszug erlassenen Endurteile statt.
(2) Die Berufung ist nur zulässig, wenn 1. der Wert des Beschwerdegegenstandes 600 Euro übersteigt oder 2. das Gericht des ersten Rechtszuges die Berufung im Urteil zugelassen hat.
(3) Der Berufungskläger hat den Wert nach Absatz 2 Nr. 1 glaubhaft zu machen; zur Versicherung an Eides statt darf er nicht zugelassen werden.
(4) Das Gericht des ersten Rechtszuges lässt die Berufung zu, wenn 1. die Rechtssache grundsätzliche Bedeutung hat oder die Fortbildung des Rechts oder die Sicherung einer
einheitlichen Rechtsprechung eine Entscheidung des Berufungsgerichts erfordert und 2. die Partei durch das Urteil mit nicht mehr als 600 Euro beschwert ist. Das Berufungsgericht ist an die Zulassung gebunden.
§ 512 Vorentscheidungen im ersten Rechtszug
Der Beurteilung des Berufungsgerichts unterliegen auch diejenigen Entscheidungen, die dem Endurteil vorausgegangen sind, sofern sie nicht nach den Vorschriften dieses Gesetzes unanfechtbar oder mit der sofortigen Beschwerde anfechtbar sind.
§ 513 Berufungsgründe
(1) Die Berufung kann nur darauf gestützt werden, dass die Entscheidung auf einer Rechtsverletzung (§ 546) beruht oder nach § 529 zugrunde zu legende Tatsachen eine andere Entscheidung rechtfertigen.
(2) Die Berufung kann nicht darauf gestützt werden, dass das Gericht des ersten Rechtszuges seine Zuständigkeit zu Unrecht angenommen hat.
§ 514 Versäumnisurteile
(1) Ein Versäumnisurteil kann von der Partei, gegen die es erlassen ist, mit der Berufung oder Anschlussberufung nicht angefochten werden.
(2) Ein Versäumnisurteil, gegen das der Einspruch an sich nicht statthaft ist, unterliegt der Berufung oder Anschlussberufung insoweit, als sie darauf gestützt wird, dass der Fall der schuldhaften Versäumung nicht vorgelegen habe. § 511 Abs. 2 ist nicht anzuwenden.
§ 515 Verzicht auf Berufung
Die Wirksamkeit eines Verzichts auf das Recht der Berufung ist nicht davon abhängig, dass der Gegner die Verzichtsleistung angenommen hat.
§ 516 Zurücknahme der Berufung
(1) Der Berufungskläger kann die Berufung bis zur Verkündung des Berufungsurteils zurücknehmen.
(2) Die Zurücknahme ist dem Gericht gegenüber zu erklären. Sie erfolgt, wenn sie nicht bei der mündlichen Verhandlung erklärt wird, durch Einreichung eines Schriftsatzes.
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(3) Die Zurücknahme hat den Verlust des eingelegten Rechtsmittels und die Verpflichtung zur Folge, die durch das Rechtsmittel entstandenen Kosten zu tragen. Diese Wirkungen sind durch Beschluss auszusprechen.
§ 517 Berufungsfrist
Die Berufungsfrist beträgt einen Monat; sie ist eine Notfrist und beginnt mit der Zustellung des in vollständiger Form abgefassten Urteils, spätestens aber mit dem Ablauf von fünf Monaten nach der Verkündung.
§ 518 Berufungsfrist bei Urteilsergänzung
Wird innerhalb der Berufungsfrist ein Urteil durch eine nachträgliche Entscheidung ergänzt (§ 321), so beginnt mit der Zustellung der nachträglichen Entscheidung der Lauf der Berufungsfrist auch für die Berufung gegen das zuerst ergangene Urteil von neuem. Wird gegen beide Urteile von derselben Partei Berufung eingelegt, so sind beide Berufungen miteinander zu verbinden.
§ 519 Berufungsschrift
(1) Die Berufung wird durch Einreichung der Berufungsschrift bei dem Berufungsgericht eingelegt.
(2) Die Berufungsschrift muss enthalten: 1. die Bezeichnung des Urteils, gegen das die Berufung gerichtet wird; 2. die Erklärung, dass gegen dieses Urteil Berufung eingelegt werde.
(3) Mit der Berufungsschrift soll eine Ausfertigung oder beglaubigte Abschrift des angefochtenen Urteils vorgelegt werden.
(4) Die allgemeinen Vorschriften über die vorbereitenden Schriftsätze sind auch auf die Berufungsschrift anzuwenden.
§ 520 Berufungsbegründung
(1) Der Berufungskläger muss die Berufung begründen.
(2) Die Frist für die Berufungsbegründung beträgt zwei Monate und beginnt mit der Zustellung des in vollständiger Form abgefassten Urteils, spätestens aber mit Ablauf von fünf Monaten nach der Verkündung. Die Frist kann auf Antrag von dem Vorsitzenden verlängert werden, wenn der Gegner einwilligt. Ohne Einwilligung kann die Frist um bis zu einem Monat verlängert werden, wenn nach freier Überzeugung des Vorsitzenden der Rechtsstreit durch die Verlängerung nicht verzögert wird oder wenn der Berufungskläger erhebliche Gründe darlegt.
(3) Die Berufungsbegründung ist, sofern sie nicht bereits in der Berufungsschrift enthalten ist, in einem Schriftsatz bei dem Berufungsgericht einzureichen. Die Berufungsbegründung muss enthalten: 1. die Erklärung, inwieweit das Urteil angefochten wird und welche Abänderungen des Urteils beantragt werden
(Berufungsanträge); 2. die Bezeichnung der Umstände, aus denen sich die Rechtsverletzung und deren Erheblichkeit für die
angefochtene Entscheidung ergibt; 3. die Bezeichnung konkreter Anhaltspunkte, die Zweifel an der Richtigkeit oder Vollständigkeit der
Tatsachenfeststellungen im angefochtenen Urteil begründen und deshalb eine erneute Feststellung gebieten;
4. die Bezeichnung der neuen Angriffs- und Verteidigungsmittel sowie der Tatsachen, auf Grund derer die neuen Angriffs- und Verteidigungsmittel nach § 531 Abs. 2 zuzulassen sind.
(4) Die Berufungsbegründung soll ferner enthalten: 1. die Angabe des Wertes des nicht in einer bestimmten Geldsumme bestehenden Beschwerdegegenstandes,
wenn von ihm die Zulässigkeit der Berufung abhängt; 2. eine Äußerung dazu, ob einer Entscheidung der Sache durch den Einzelrichter Gründe entgegenstehen.
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(5) Die allgemeinen Vorschriften über die vorbereitenden Schriftsätze sind auch auf die Berufungsbegründung anzuwenden.
§ 521 Zustellung der Berufungsschrift und -begründung
(1) Die Berufungsschrift und die Berufungsbegründung sind der Gegenpartei zuzustellen.
(2) Der Vorsitzende oder das Berufungsgericht kann der Gegenpartei eine Frist zur schriftlichen Berufungserwiderung und dem Berufungskläger eine Frist zur schriftlichen Stellungnahme auf die Berufungserwiderung setzen. § 277 gilt entsprechend.
§ 522 Zulässigkeitsprüfung; Zurückweisungsbeschluss
(1) Das Berufungsgericht hat von Amts wegen zu prüfen, ob die Berufung an sich statthaft und ob sie in der gesetzlichen Form und Frist eingelegt und begründet ist. Mangelt es an einem dieser Erfordernisse, so ist die Berufung als unzulässig zu verwerfen. Die Entscheidung kann durch Beschluss ergehen. Gegen den Beschluss findet die Rechtsbeschwerde statt.
(2) Das Berufungsgericht soll die Berufung durch Beschluss unverzüglich zurückweisen, wenn es einstimmig davon überzeugt ist, dass 1. die Berufung offensichtlich keine Aussicht auf Erfolg hat, 2. die Rechtssache keine grundsätzliche Bedeutung hat, 3. die Fortbildung des Rechts oder die Sicherung einer einheitlichen Rechtsprechung eine Entscheidung des
Berufungsgerichts nicht erfordert und 4. eine mündliche Verhandlung nicht geboten ist. Das Berufungsgericht oder der Vorsitzende hat zuvor die Parteien auf die beabsichtigte Zurückweisung der Berufung und die Gründe hierfür hinzuweisen und dem Berufungsführer binnen einer zu bestimmenden Frist Gelegenheit zur Stellungnahme zu geben. Der Beschluss nach Satz 1 ist zu begründen, soweit die Gründe für die Zurückweisung nicht bereits in dem Hinweis nach Satz 2 enthalten sind. Ein anfechtbarer Beschluss hat darüber hinaus eine Bezugnahme auf die tatsächlichen Feststellungen im angefochtenen Urteil mit Darstellung etwaiger Änderungen oder Ergänzungen zu enthalten.
(3) Gegen den Beschluss nach Absatz 2 Satz 1 steht dem Berufungsführer das Rechtsmittel zu, das bei einer Entscheidung durch Urteil zulässig wäre.
Fußnote
(+++ § 522 Abs. 3: Zur Anwendung vgl. § 38a ZPOEG +++)
§ 523 Terminsbestimmung
(1) Wird die Berufung nicht nach § 522 durch Beschluss verworfen oder zurückgewiesen, so entscheidet das Berufungsgericht über die Übertragung des Rechtsstreits auf den Einzelrichter. Sodann ist unverzüglich Termin zur mündlichen Verhandlung zu bestimmen.
(2) Auf die Frist, die zwischen dem Zeitpunkt der Bekanntmachung des Termins und der mündlichen Verhandlung liegen muss, ist § 274 Abs. 3 entsprechend anzuwenden.
§ 524 Anschlussberufung
(1) Der Berufungsbeklagte kann sich der Berufung anschließen. Die Anschließung erfolgt durch Einreichung der Berufungsanschlussschrift bei dem Berufungsgericht.
(2) Die Anschließung ist auch statthaft, wenn der Berufungsbeklagte auf die Berufung verzichtet hat oder die Berufungsfrist verstrichen ist. Sie ist zulässig bis zum Ablauf der dem Berufungsbeklagten gesetzten Frist zur Berufungserwiderung. Diese Frist gilt nicht, wenn die Anschließung eine Verurteilung zu künftig fällig werdenden wiederkehrenden Leistungen (§ 323) zum Gegenstand hat.
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(3) Die Anschlussberufung muss in der Anschlussschrift begründet werden. Die Vorschriften des § 519 Abs. 2, 4 und des § 520 Abs. 3 sowie des § 521 gelten entsprechend.
(4) Die Anschließung verliert ihre Wirkung, wenn die Berufung zurückgenommen, verworfen oder durch Beschluss zurückgewiesen wird.
§ 525 Allgemeine Verfahrensgrundsätze
Auf das weitere Verfahren sind die im ersten Rechtszuge für das Verfahren vor den Landgerichten geltenden Vorschriften entsprechend anzuwenden, soweit sich nicht Abweichungen aus den Vorschriften dieses Abschnitts ergeben. Einer Güteverhandlung bedarf es nicht.
§ 526 Entscheidender Richter
(1) Das Berufungsgericht kann durch Beschluss den Rechtsstreit einem seiner Mitglieder als Einzelrichter zur Entscheidung übertragen, wenn 1. die angefochtene Entscheidung von einem Einzelrichter erlassen wurde, 2. die Sache keine besonderen Schwierigkeiten tatsächlicher oder rechtlicher Art aufweist, 3. die Rechtssache keine grundsätzliche Bedeutung hat und 4. nicht bereits im Haupttermin zur Hauptsache verhandelt worden ist, es sei denn, dass inzwischen ein
Vorbehalts-, Teil- oder Zwischenurteil ergangen ist.
(2) Der Einzelrichter legt den Rechtsstreit dem Berufungsgericht zur Entscheidung über eine Übernahme vor, wenn 1. sich aus einer wesentlichen Änderung der Prozesslage besondere tatsächliche oder rechtliche
Schwierigkeiten der Sache oder die grundsätzliche Bedeutung der Rechtssache ergeben oder 2. die Parteien dies übereinstimmend beantragen. Das Berufungsgericht übernimmt den Rechtsstreit, wenn die Voraussetzungen nach Satz 1 Nr. 1 vorliegen. Es entscheidet hierüber nach Anhörung der Parteien durch Beschluss. Eine erneute Übertragung auf den Einzelrichter ist ausgeschlossen.
(3) Auf eine erfolgte oder unterlassene Übertragung, Vorlage oder Übernahme kann ein Rechtsmittel nicht gestützt werden.
(4) In Sachen der Kammer für Handelssachen kann Einzelrichter nur der Vorsitzende sein.
§ 527 Vorbereitender Einzelrichter
(1) Wird der Rechtsstreit nicht nach § 526 dem Einzelrichter übertragen, kann das Berufungsgericht die Sache einem seiner Mitglieder als Einzelrichter zur Vorbereitung der Entscheidung zuweisen. In der Kammer für Handelssachen ist Einzelrichter der Vorsitzende; außerhalb der mündlichen Verhandlung bedarf es einer Zuweisung nicht.
(2) Der Einzelrichter hat die Sache so weit zu fördern, dass sie in einer mündlichen Verhandlung vor dem Berufungsgericht erledigt werden kann. Er kann zu diesem Zweck einzelne Beweise erheben, soweit dies zur Vereinfachung der Verhandlung vor dem Berufungsgericht wünschenswert und von vornherein anzunehmen ist, dass das Berufungsgericht das Beweisergebnis auch ohne unmittelbaren Eindruck von dem Verlauf der Beweisaufnahme sachgemäß zu würdigen vermag.
(3) Der Einzelrichter entscheidet 1. über die Verweisung nach § 100 in Verbindung mit den §§ 97 bis 99 des Gerichtsverfassungsgesetzes; 2. bei Zurücknahme der Klage oder der Berufung, Verzicht auf den geltend gemachten Anspruch oder
Anerkenntnis des Anspruchs; 3. bei Säumnis einer Partei oder beider Parteien;
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4. über die Verpflichtung, die Prozesskosten zu tragen, sofern nicht das Berufungsgericht gleichzeitig mit der Hauptsache hierüber entscheidet;
5. über den Wert des Streitgegenstandes; 6. über Kosten, Gebühren und Auslagen.
(4) Im Einverständnis der Parteien kann der Einzelrichter auch im Übrigen entscheiden.
§ 528 Bindung an die Berufungsanträge
Der Prüfung und Entscheidung des Berufungsgerichts unterliegen nur die Berufungsanträge. Das Urteil des ersten Rechtszuges darf nur insoweit abgeändert werden, als eine Abänderung beantragt ist.
§ 529 Prüfungsumfang des Berufungsgerichts
(1) Das Berufungsgericht hat seiner Verhandlung und Entscheidung zugrunde zu legen: 1. die vom Gericht des ersten Rechtszuges festgestellten Tatsachen, soweit nicht konkrete Anhaltspunkte
Zweifel an der Richtigkeit oder Vollständigkeit der entscheidungserheblichen Feststellungen begründen und deshalb eine erneute Feststellung gebieten;
2. neue Tatsachen, soweit deren Berücksichtigung zulässig ist.
(2) Auf einen Mangel des Verfahrens, der nicht von Amts wegen zu berücksichtigen ist, wird das angefochtene Urteil nur geprüft, wenn dieser nach § 520 Abs. 3 geltend gemacht worden ist. Im Übrigen ist das Berufungsgericht an die geltend gemachten Berufungsgründe nicht gebunden.
§ 530 Verspätet vorgebrachte Angriffs- und Verteidigungsmittel
Werden Angriffs- oder Verteidigungsmittel entgegen den §§ 520 und 521 Abs. 2 nicht rechtzeitig vorgebracht, so gilt § 296 Abs. 1 und 4 entsprechend.
§ 531 Zurückgewiesene und neue Angriffs- und Verteidigungsmittel
(1) Angriffs- und Verteidigungsmittel, die im ersten Rechtszuge zu Recht zurückgewiesen worden sind, bleiben ausgeschlossen.
(2) Neue Angriffs- und Verteidigungsmittel sind nur zuzulassen, wenn sie 1. einen Gesichtspunkt betreffen, der vom Gericht des ersten Rechtszuges erkennbar übersehen oder für
unerheblich gehalten worden ist, 2. infolge eines Verfahrensmangels im ersten Rechtszug nicht geltend gemacht wurden oder 3. im ersten Rechtszug nicht geltend gemacht worden sind, ohne dass dies auf einer Nachlässigkeit der Partei
beruht. Das Berufungsgericht kann die Glaubhaftmachung der Tatsachen verlangen, aus denen sich die Zulässigkeit der neuen Angriffs- und Verteidigungsmittel ergibt.
§ 532 Rügen der Unzulässigkeit der Klage
Verzichtbare Rügen, die die Zulässigkeit der Klage betreffen und die entgegen den §§ 520 und 521 Abs. 2 nicht rechtzeitig vorgebracht werden, sind nur zuzulassen, wenn die Partei die Verspätung genügend entschuldigt. Dasselbe gilt für verzichtbare neue Rügen, die die Zulässigkeit der Klage betreffen, wenn die Partei sie im ersten Rechtszug hätte vorbringen können. Der Entschuldigungsgrund ist auf Verlangen des Gerichts glaubhaft zu machen.
§ 533 Klageänderung; Aufrechnungserklärung; Widerklage
Klageänderung, Aufrechnungserklärung und Widerklage sind nur zulässig, wenn 1. der Gegner einwilligt oder das Gericht dies für sachdienlich hält und
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2. diese auf Tatsachen gestützt werden können, die das Berufungsgericht seiner Verhandlung und Entscheidung über die Berufung ohnehin nach § 529 zugrunde zu legen hat.
§ 534 Verlust des Rügerechts
Die Verletzung einer das Verfahren des ersten Rechtszuges betreffenden Vorschrift kann in der Berufungsinstanz nicht mehr gerügt werden, wenn die Partei das Rügerecht bereits im ersten Rechtszuge nach der Vorschrift des § 295 verloren hat.
§ 535 Gerichtliches Geständnis
Das im ersten Rechtszuge abgelegte gerichtliche Geständnis behält seine Wirksamkeit auch für die Berufungsinstanz.
§ 536 Parteivernehmung
(1) Das Berufungsgericht darf die Vernehmung oder Beeidigung einer Partei, die im ersten Rechtszuge die Vernehmung abgelehnt oder die Aussage oder den Eid verweigert hatte, nur anordnen, wenn es der Überzeugung ist, dass die Partei zu der Ablehnung oder Weigerung genügende Gründe hatte und diese Gründe seitdem weggefallen sind.
(2) War eine Partei im ersten Rechtszuge vernommen und auf ihre Aussage beeidigt, so darf das Berufungsgericht die eidliche Vernehmung des Gegners nur anordnen, wenn die Vernehmung oder Beeidigung im ersten Rechtszuge unzulässig war.
§ 537 Vorläufige Vollstreckbarkeit
(1) Ein nicht oder nicht unbedingt für vorläufig vollstreckbar erklärtes Urteil des ersten Rechtszuges ist, soweit es durch die Berufungsanträge nicht angefochten wird, auf Antrag von dem Berufungsgericht durch Beschluss für vorläufig vollstreckbar zu erklären. Die Entscheidung ist erst nach Ablauf der Berufungsbegründungsfrist zulässig.
(2) Eine Anfechtung des Beschlusses findet nicht statt.
§ 538 Zurückverweisung
(1) Das Berufungsgericht hat die notwendigen Beweise zu erheben und in der Sache selbst zu entscheiden.
(2) Das Berufungsgericht darf die Sache, soweit ihre weitere Verhandlung erforderlich ist, unter Aufhebung des Urteils und des Verfahrens an das Gericht des ersten Rechtszuges nur zurückverweisen, 1. soweit das Verfahren im ersten Rechtszuge an einem wesentlichen Mangel leidet und auf Grund dieses
Mangels eine umfangreiche oder aufwändige Beweisaufnahme notwendig ist, 2. wenn durch das angefochtene Urteil ein Einspruch als unzulässig verworfen ist, 3. wenn durch das angefochtene Urteil nur über die Zulässigkeit der Klage entschieden ist, 4. wenn im Falle eines nach Grund und Betrag streitigen Anspruchs durch das angefochtene Urteil über den
Grund des Anspruchs vorab entschieden oder die Klage abgewiesen ist, es sei denn, dass der Streit über den Betrag des Anspruchs zur Entscheidung reif ist,
5. wenn das angefochtene Urteil im Urkunden- oder Wechselprozess unter Vorbehalt der Rechte erlassen ist, 6. wenn das angefochtene Urteil ein Versäumnisurteil ist oder 7. wenn das angefochtene Urteil ein entgegen den Voraussetzungen des § 301 erlassenes Teilurteil ist und eine Partei die Zurückverweisung beantragt. Im Fall der Nummer 3 hat das Berufungsgericht sämtliche Rügen zu erledigen. Im Fall der Nummer 7 bedarf es eines Antrags nicht.
§ 539 Versäumnisverfahren
(1) Erscheint der Berufungskläger im Termin zur mündlichen Verhandlung nicht, so ist seine Berufung auf Antrag durch Versäumnisurteil zurückzuweisen.
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(2) Erscheint der Berufungsbeklagte nicht und beantragt der Berufungskläger gegen ihn das Versäumnisurteil, so ist das zulässige tatsächliche Vorbringen des Berufungsklägers als zugestanden anzunehmen. Soweit es den Berufungsantrag rechtfertigt, ist nach dem Antrag zu erkennen; soweit dies nicht der Fall ist, ist die Berufung zurückzuweisen.
(3) Im Übrigen gelten die Vorschriften über das Versäumnisverfahren im ersten Rechtszug sinngemäß.
§ 540 Inhalt des Berufungsurteils
(1) Anstelle von Tatbestand und Entscheidungsgründen enthält das Urteil 1. die Bezugnahme auf die tatsächlichen Feststellungen im angefochtenen Urteil mit Darstellung etwaiger
Änderungen oder Ergänzungen, 2. eine kurze Begründung für die Abänderung, Aufhebung oder Bestätigung der angefochtenen Entscheidung. Wird das Urteil in dem Termin, in dem die mündliche Verhandlung geschlossen worden ist, verkündet, so können die nach Satz 1 erforderlichen Darlegungen auch in das Protokoll aufgenommen werden.
(2) Die §§ 313a, 313b gelten entsprechend.
§ 541 Prozessakten
(1) Die Geschäftsstelle des Berufungsgerichts hat, nachdem die Berufungsschrift eingereicht ist, unverzüglich von der Geschäftsstelle des Gerichts des ersten Rechtszuges die Prozessakten einzufordern. Die Akten sind unverzüglich an das Berufungsgericht zu übersenden.
(2) Nach Erledigung der Berufung sind die Akten der Geschäftsstelle des Gerichts des ersten Rechtszuges nebst einer beglaubigten Abschrift der in der Berufungsinstanz ergangenen Entscheidung zurückzusenden.
Abschnitt 2 Revision § 542 Statthaftigkeit der Revision
(1) Die Revision findet gegen die in der Berufungsinstanz erlassenen Endurteile nach Maßgabe der folgenden Vorschriften statt.
(2) Gegen Urteile, durch die über die Anordnung, Abänderung oder Aufhebung eines Arrestes oder einer einstweiligen Verfügung entschieden worden ist, findet die Revision nicht statt. Dasselbe gilt für Urteile über die vorzeitige Besitzeinweisung im Enteignungsverfahren oder im Umlegungsverfahren.
§ 543 Zulassungsrevision
(1) Die Revision findet nur statt, wenn sie 1. das Berufungsgericht in dem Urteil oder 2. das Revisionsgericht auf Beschwerde gegen die Nichtzulassung zugelassen hat.
(2) Die Revision ist zuzulassen, wenn 1. die Rechtssache grundsätzliche Bedeutung hat oder 2. die Fortbildung des Rechts oder die Sicherung einer einheitlichen Rechtsprechung eine Entscheidung des
Revisionsgerichts erfordert. Das Revisionsgericht ist an die Zulassung durch das Berufungsgericht gebunden.
§ 544 Nichtzulassungsbeschwerde
(1) Die Nichtzulassung der Revision durch das Berufungsgericht unterliegt der Beschwerde (Nichtzulassungsbeschwerde). Die Beschwerde ist innerhalb einer Notfrist von einem Monat nach Zustellung
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des in vollständiger Form abgefassten Urteils, spätestens aber bis zum Ablauf von sechs Monaten nach der Verkündung des Urteils bei dem Revisionsgericht einzulegen. Mit der Beschwerdeschrift soll eine Ausfertigung oder beglaubigte Abschrift des Urteils, gegen das die Revision eingelegt werden soll, vorgelegt werden.
(2) Die Beschwerde ist innerhalb von zwei Monaten nach Zustellung des in vollständiger Form abgefassten Urteils, spätestens aber bis zum Ablauf von sieben Monaten nach der Verkündung des Urteils zu begründen. § 551 Abs. 2 Satz 5 und 6 gilt entsprechend. In der Begründung müssen die Zulassungsgründe (§ 543 Abs. 2) dargelegt werden.
(3) Das Revisionsgericht gibt dem Gegner des Beschwerdeführers Gelegenheit zur Stellungnahme.
(4) Das Revisionsgericht entscheidet über die Beschwerde durch Beschluss. Der Beschluss soll kurz begründet werden; von einer Begründung kann abgesehen werden, wenn sie nicht geeignet wäre, zur Klärung der Voraussetzungen beizutragen, unter denen eine Revision zuzulassen ist, oder wenn der Beschwerde stattgegeben wird. Die Entscheidung über die Beschwerde ist den Parteien zuzustellen.
(5) Die Einlegung der Beschwerde hemmt die Rechtskraft des Urteils. § 719 Abs. 2 und 3 ist entsprechend anzuwenden. Mit der Ablehnung der Beschwerde durch das Revisionsgericht wird das Urteil rechtskräftig.
(6) Wird der Beschwerde gegen die Nichtzulassung der Revision stattgegeben, so wird das Beschwerdeverfahren als Revisionsverfahren fortgesetzt. In diesem Fall gilt die form- und fristgerechte Einlegung der Nichtzulassungsbeschwerde als Einlegung der Revision. Mit der Zustellung der Entscheidung beginnt die Revisionsbegründungsfrist.
(7) Hat das Berufungsgericht den Anspruch des Beschwerdeführers auf rechtliches Gehör in entscheidungserheblicher Weise verletzt, so kann das Revisionsgericht abweichend von Absatz 6 in dem der Beschwerde stattgebenden Beschluss das angefochtene Urteil aufheben und den Rechtsstreit zur neuen Verhandlung und Entscheidung an das Berufungsgericht zurückverweisen.
Fußnote
(+++ § 544: Zur Anwendung vgl. § 26 Nr. 8 ZPOEG +++)
§ 545 Revisionsgründe
(1) Die Revision kann nur darauf gestützt werden, dass die Entscheidung auf einer Verletzung des Rechts beruht.
(2) Die Revision kann nicht darauf gestützt werden, dass das Gericht des ersten Rechtszuges seine Zuständigkeit zu Unrecht angenommen oder verneint hat.
§ 546 Begriff der Rechtsverletzung
Das Recht ist verletzt, wenn eine Rechtsnorm nicht oder nicht richtig angewendet worden ist.
§ 547 Absolute Revisionsgründe
Eine Entscheidung ist stets als auf einer Verletzung des Rechts beruhend anzusehen, 1. wenn das erkennende Gericht nicht vorschriftsmäßig besetzt war; 2. wenn bei der Entscheidung ein Richter mitgewirkt hat, der von der Ausübung des Richteramts kraft Gesetzes
ausgeschlossen war, sofern nicht dieses Hindernis mittels eines Ablehnungsgesuchs ohne Erfolg geltend gemacht ist;
3. wenn bei der Entscheidung ein Richter mitgewirkt hat, obgleich er wegen Besorgnis der Befangenheit abgelehnt und das Ablehnungsgesuch für begründet erklärt war;
4. wenn eine Partei in dem Verfahren nicht nach Vorschrift der Gesetze vertreten war, sofern sie nicht die Prozessführung ausdrücklich oder stillschweigend genehmigt hat;
5. wenn die Entscheidung auf Grund einer mündlichen Verhandlung ergangen ist, bei der die Vorschriften über die Öffentlichkeit des Verfahrens verletzt sind;
6. wenn die Entscheidung entgegen den Bestimmungen dieses Gesetzes nicht mit Gründen versehen ist.
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§ 548 Revisionsfrist
Die Frist für die Einlegung der Revision (Revisionsfrist) beträgt einen Monat; sie ist eine Notfrist und beginnt mit der Zustellung des in vollständiger Form abgefassten Berufungsurteils, spätestens aber mit dem Ablauf von fünf Monaten nach der Verkündung.
§ 549 Revisionseinlegung
(1) Die Revision wird durch Einreichung der Revisionsschrift bei dem Revisionsgericht eingelegt. Die Revisionsschrift muss enthalten: 1. die Bezeichnung des Urteils, gegen das die Revision gerichtet wird; 2. die Erklärung, dass gegen dieses Urteil Revision eingelegt werde. § 544 Abs. 6 Satz 2 bleibt unberührt.
(2) Die allgemeinen Vorschriften über die vorbereitenden Schriftsätze sind auch auf die Revisionsschrift anzuwenden.
§ 550 Zustellung der Revisionsschrift
(1) Mit der Revisionsschrift soll eine Ausfertigung oder beglaubigte Abschrift des angefochtenen Urteils vorgelegt werden, soweit dies nicht bereits nach § 544 Absatz 1 Satz 3 geschehen ist.
(2) Die Revisionsschrift ist der Gegenpartei zuzustellen.
§ 551 Revisionsbegründung
(1) Der Revisionskläger muss die Revision begründen.
(2) Die Revisionsbegründung ist, sofern sie nicht bereits in der Revisionsschrift enthalten ist, in einem Schriftsatz bei dem Revisionsgericht einzureichen. Die Frist für die Revisionsbegründung beträgt zwei Monate. Sie beginnt mit der Zustellung des in vollständiger Form abgefassten Urteils, spätestens aber mit Ablauf von fünf Monaten nach der Verkündung. § 544 Abs. 6 Satz 3 bleibt unberührt. Die Frist kann auf Antrag von dem Vorsitzenden verlängert werden, wenn der Gegner einwilligt. Ohne Einwilligung kann die Frist um bis zu zwei Monate verlängert werden, wenn nach freier Überzeugung des Vorsitzenden der Rechtsstreit durch die Verlängerung nicht verzögert wird oder wenn der Revisionskläger erhebliche Gründe darlegt; kann dem Revisionskläger innerhalb dieser Frist Einsicht in die Prozessakten nicht für einen angemessenen Zeitraum gewährt werden, kann der Vorsitzende auf Antrag die Frist um bis zu zwei Monate nach Übersendung der Prozessakten verlängern.
(3) Die Revisionsbegründung muss enthalten: 1. die Erklärung, inwieweit das Urteil angefochten und dessen Aufhebung beantragt werde (Revisionsanträge); 2. die Angabe der Revisionsgründe, und zwar:
a) die bestimmte Bezeichnung der Umstände, aus denen sich die Rechtsverletzung ergibt; b) soweit die Revision darauf gestützt wird, dass das Gesetz in Bezug auf das Verfahren verletzt sei, die
Bezeichnung der Tatsachen, die den Mangel ergeben.
Ist die Revision auf Grund einer Nichtzulassungsbeschwerde zugelassen worden, kann zur Begründung der Revision auf die Begründung der Nichtzulassungsbeschwerde Bezug genommen werden.
(4) § 549 Abs. 2 und § 550 Abs. 2 sind auf die Revisionsbegründung entsprechend anzuwenden.
§ 552 Zulässigkeitsprüfung
(1) Das Revisionsgericht hat von Amts wegen zu prüfen, ob die Revision an sich statthaft und ob sie in der gesetzlichen Form und Frist eingelegt und begründet ist. Mangelt es an einem dieser Erfordernisse, so ist die Revision als unzulässig zu verwerfen.
(2) Die Entscheidung kann durch Beschluss ergehen.
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§ 552a Zurückweisungsbeschluss
Das Revisionsgericht weist die von dem Berufungsgericht zugelassene Revision durch einstimmigen Beschluss zurück, wenn es davon überzeugt ist, dass die Voraussetzungen für die Zulassung der Revision nicht vorliegen und die Revision keine Aussicht auf Erfolg hat. § 522 Abs. 2 Satz 2 und 3 gilt entsprechend.
§ 553 Terminsbestimmung; Einlassungsfrist
(1) Wird die Revision nicht durch Beschluss als unzulässig verworfen oder gemäß § 552a zurückgewiesen, so ist Termin zur mündlichen Verhandlung zu bestimmen und den Parteien bekannt zu machen.
(2) Auf die Frist, die zwischen dem Zeitpunkt der Bekanntmachung des Termins und der mündlichen Verhandlung liegen muss, ist § 274 Abs. 3 entsprechend anzuwenden.
§ 554 Anschlussrevision
(1) Der Revisionsbeklagte kann sich der Revision anschließen. Die Anschließung erfolgt durch Einreichung der Revisionsanschlussschrift bei dem Revisionsgericht.
(2) Die Anschließung ist auch statthaft, wenn der Revisionsbeklagte auf die Revision verzichtet hat, die Revisionsfrist verstrichen oder die Revision nicht zugelassen worden ist. Die Anschließung ist bis zum Ablauf eines Monats nach der Zustellung der Revisionsbegründung zu erklären.
(3) Die Anschlussrevision muss in der Anschlussschrift begründet werden. § 549 Abs. 1 Satz 2 und Abs. 2 und die §§ 550 und 551 Abs. 3 gelten entsprechend.
(4) Die Anschließung verliert ihre Wirkung, wenn die Revision zurückgenommen, verworfen oder durch Beschluss zurückgewiesen wird.
§ 555 Allgemeine Verfahrensgrundsätze
(1) Auf das weitere Verfahren sind, soweit sich nicht Abweichungen aus den Vorschriften dieses Abschnitts ergeben, die im ersten Rechtszuge für das Verfahren vor den Landgerichten geltenden Vorschriften entsprechend anzuwenden. Einer Güteverhandlung bedarf es nicht.
(2) Die Vorschriften der §§ 348 bis 350 sind nicht anzuwenden.
(3) Ein Anerkenntnisurteil ergeht nur auf gesonderten Antrag des Klägers.
§ 556 Verlust des Rügerechts
Die Verletzung einer das Verfahren der Berufungsinstanz betreffenden Vorschrift kann in der Revisionsinstanz nicht mehr gerügt werden, wenn die Partei das Rügerecht bereits in der Berufungsinstanz nach der Vorschrift des § 295 verloren hat.
§ 557 Umfang der Revisionsprüfung
(1) Der Prüfung des Revisionsgerichts unterliegen nur die von den Parteien gestellten Anträge.
(2) Der Beurteilung des Revisionsgerichts unterliegen auch diejenigen Entscheidungen, die dem Endurteil vorausgegangen sind, sofern sie nicht nach den Vorschriften dieses Gesetzes unanfechtbar sind.
(3) Das Revisionsgericht ist an die geltend gemachten Revisionsgründe nicht gebunden. Auf Verfahrensmängel, die nicht von Amts wegen zu berücksichtigen sind, darf das angefochtene Urteil nur geprüft werden, wenn die Mängel nach den §§ 551 und 554 Abs. 3 gerügt worden sind.
§ 558 Vorläufige Vollstreckbarkeit
Ein nicht oder nicht unbedingt für vorläufig vollstreckbar erklärtes Urteil des Berufungsgerichts ist, soweit es durch die Revisionsanträge nicht angefochten wird, auf Antrag von dem Revisionsgericht durch Beschluss für vorläufig vollstreckbar zu erklären. Die Entscheidung ist erst nach Ablauf der Revisionsbegründungsfrist zulässig.
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§ 559 Beschränkte Nachprüfung tatsächlicher Feststellungen
(1) Der Beurteilung des Revisionsgerichts unterliegt nur dasjenige Parteivorbringen, das aus dem Berufungsurteil oder dem Sitzungsprotokoll ersichtlich ist. Außerdem können nur die in § 551 Abs. 3 Nr. 2 Buchstabe b erwähnten Tatsachen berücksichtigt werden.
(2) Hat das Berufungsgericht festgestellt, dass eine tatsächliche Behauptung wahr oder nicht wahr sei, so ist diese Feststellung für das Revisionsgericht bindend, es sei denn, dass in Bezug auf die Feststellung ein zulässiger und begründeter Revisionsangriff erhoben ist.
§ 560 Nicht revisible Gesetze
Die Entscheidung des Berufungsgerichts über das Bestehen und den Inhalt von Gesetzen, auf deren Verletzung die Revision nach § 545 nicht gestützt werden kann, ist für die auf die Revision ergehende Entscheidung maßgebend.
§ 561 Revisionszurückweisung
Ergibt die Begründung des Berufungsurteils zwar eine Rechtsverletzung, stellt die Entscheidung selbst aber aus anderen Gründen sich als richtig dar, so ist die Revision zurückzuweisen.
§ 562 Aufhebung des angefochtenen Urteils
(1) Insoweit die Revision für begründet erachtet wird, ist das angefochtene Urteil aufzuheben.
(2) Wird das Urteil wegen eines Mangels des Verfahrens aufgehoben, so ist zugleich das Verfahren insoweit aufzuheben, als es durch den Mangel betroffen wird.
§ 563 Zurückverweisung; eigene Sachentscheidung
(1) Im Falle der Aufhebung des Urteils ist die Sache zur neuen Verhandlung und Entscheidung an das Berufungsgericht zurückzuverweisen. Die Zurückverweisung kann an einen anderen Spruchkörper des Berufungsgerichts erfolgen.
(2) Das Berufungsgericht hat die rechtliche Beurteilung, die der Aufhebung zugrunde gelegt ist, auch seiner Entscheidung zugrunde zu legen.
(3) Das Revisionsgericht hat jedoch in der Sache selbst zu entscheiden, wenn die Aufhebung des Urteils nur wegen Rechtsverletzung bei Anwendung des Gesetzes auf das festgestellte Sachverhältnis erfolgt und nach letzterem die Sache zur Endentscheidung reif ist.
(4) Kommt im Fall des Absatzes 3 für die in der Sache selbst zu erlassende Entscheidung die Anwendbarkeit von Gesetzen, auf deren Verletzung die Revision nach § 545 nicht gestützt werden kann, in Frage, so kann die Sache zur Verhandlung und Entscheidung an das Berufungsgericht zurückverwiesen werden.
§ 564 Keine Begründung der Entscheidung bei Rügen von Verfahrensmängeln
Die Entscheidung braucht nicht begründet zu werden, soweit das Revisionsgericht Rügen von Verfahrensmängeln nicht für durchgreifend erachtet. Dies gilt nicht für Rügen nach § 547.
§ 565 Anzuwendende Vorschriften des Berufungsverfahrens
Die für die Berufung geltenden Vorschriften über die Anfechtbarkeit der Versäumnisurteile, über die Verzichtsleistung auf das Rechtsmittel und seine Zurücknahme, über die Rügen der Unzulässigkeit der Klage und über die Einforderung, Übersendung und Zurücksendung der Prozessakten sind auf die Revision entsprechend anzuwenden. Die Revision kann ohne Einwilligung des Revisionsbeklagten nur bis zum Beginn der mündlichen Verhandlung des Revisionsbeklagten zur Hauptsache zurückgenommen werden.
§ 566 Sprungrevision
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(1) Gegen die im ersten Rechtszug erlassenen Endurteile, die ohne Zulassung der Berufung unterliegen, findet auf Antrag unter Übergehung der Berufungsinstanz unmittelbar die Revision (Sprungrevision) statt, wenn 1. der Gegner in die Übergehung der Berufungsinstanz einwilligt und 2. das Revisionsgericht die Sprungrevision zulässt. Der Antrag auf Zulassung der Sprungrevision sowie die Erklärung der Einwilligung gelten als Verzicht auf das Rechtsmittel der Berufung.
(2) Die Zulassung ist durch Einreichung eines Schriftsatzes (Zulassungsschrift) bei dem Revisionsgericht zu beantragen. Die §§ 548 bis 550 gelten entsprechend. In dem Antrag müssen die Voraussetzungen für die Zulassung der Sprungrevision (Absatz 4) dargelegt werden. Die schriftliche Erklärung der Einwilligung des Antragsgegners ist dem Zulassungsantrag beizufügen; sie kann auch von dem Prozessbevollmächtigten des ersten Rechtszuges oder, wenn der Rechtsstreit im ersten Rechtszug nicht als Anwaltsprozess zu führen gewesen ist, zu Protokoll der Geschäftsstelle abgegeben werden.
(3) Der Antrag auf Zulassung der Sprungrevision hemmt die Rechtskraft des Urteils. § 719 Abs. 2 und 3 ist entsprechend anzuwenden. Die Geschäftsstelle des Revisionsgerichts hat, nachdem der Antrag eingereicht ist, unverzüglich von der Geschäftsstelle des Gerichts des ersten Rechtszuges die Prozessakten einzufordern.
(4) Die Sprungrevision ist nur zuzulassen, wenn 1. die Rechtssache grundsätzliche Bedeutung hat oder 2. die Fortbildung des Rechts oder die Sicherung einer einheitlichen Rechtsprechung eine Entscheidung des
Revisionsgerichts erfordert. Die Sprungrevision kann nicht auf einen Mangel des Verfahrens gestützt werden.
(5) Das Revisionsgericht entscheidet über den Antrag auf Zulassung der Sprungrevision durch Beschluss. Der Beschluss ist den Parteien zuzustellen.
(6) Wird der Antrag auf Zulassung der Revision abgelehnt, so wird das Urteil rechtskräftig.
(7) Wird die Revision zugelassen, so wird das Verfahren als Revisionsverfahren fortgesetzt. In diesem Fall gilt der form- und fristgerechte Antrag auf Zulassung als Einlegung der Revision. Mit der Zustellung der Entscheidung beginnt die Revisionsbegründungsfrist.
(8) Das weitere Verfahren bestimmt sich nach den für die Revision geltenden Bestimmungen. § 563 ist mit der Maßgabe anzuwenden, dass die Zurückverweisung an das erstinstanzliche Gericht erfolgt. Wird gegen die nachfolgende Entscheidung des erstinstanzlichen Gerichts Berufung eingelegt, so hat das Berufungsgericht die rechtliche Beurteilung, die der Aufhebung durch das Revisionsgericht zugrunde gelegt ist, auch seiner Entscheidung zugrunde zu legen.
Abschnitt 3 Beschwerde
Titel 1 Sofortige Beschwerde § 567 Sofortige Beschwerde; Anschlussbeschwerde
(1) Die sofortige Beschwerde findet statt gegen die im ersten Rechtszug ergangenen Entscheidungen der Amtsgerichte und Landgerichte, wenn 1. dies im Gesetz ausdrücklich bestimmt ist oder 2. es sich um solche eine mündliche Verhandlung nicht erfordernde Entscheidungen handelt, durch die ein das
Verfahren betreffendes Gesuch zurückgewiesen worden ist.
(2) Gegen Entscheidungen über Kosten ist die Beschwerde nur zulässig, wenn der Wert des Beschwerdegegenstands 200 Euro übersteigt.
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(3) Der Beschwerdegegner kann sich der Beschwerde anschließen, selbst wenn er auf die Beschwerde verzichtet hat oder die Beschwerdefrist verstrichen ist. Die Anschließung verliert ihre Wirkung, wenn die Beschwerde zurückgenommen oder als unzulässig verworfen wird.
§ 568 Originärer Einzelrichter
Das Beschwerdegericht entscheidet durch eines seiner Mitglieder als Einzelrichter, wenn die angefochtene Entscheidung von einem Einzelrichter oder einem Rechtspfleger erlassen wurde. Der Einzelrichter überträgt das Verfahren dem Beschwerdegericht zur Entscheidung in der im Gerichtsverfassungsgesetz vorgeschriebenen Besetzung, wenn 1. die Sache besondere Schwierigkeiten tatsächlicher oder rechtlicher Art aufweist oder 2. die Rechtssache grundsätzliche Bedeutung hat. Auf eine erfolgte oder unterlassene Übertragung kann ein Rechtsmittel nicht gestützt werden.
§ 569 Frist und Form
(1) Die sofortige Beschwerde ist, soweit keine andere Frist bestimmt ist, binnen einer Notfrist von zwei Wochen bei dem Gericht, dessen Entscheidung angefochten wird, oder bei dem Beschwerdegericht einzulegen. Die Notfrist beginnt, soweit nichts anderes bestimmt ist, mit der Zustellung der Entscheidung, spätestens mit dem Ablauf von fünf Monaten nach der Verkündung des Beschlusses. Liegen die Erfordernisse der Nichtigkeits- oder der Restitutionsklage vor, so kann die Beschwerde auch nach Ablauf der Notfrist innerhalb der für diese Klagen geltenden Notfristen erhoben werden.
(2) Die Beschwerde wird durch Einreichung einer Beschwerdeschrift eingelegt. Die Beschwerdeschrift muss die Bezeichnung der angefochtenen Entscheidung sowie die Erklärung enthalten, dass Beschwerde gegen diese Entscheidung eingelegt werde.
(3) Die Beschwerde kann auch durch Erklärung zu Protokoll der Geschäftsstelle eingelegt werden, wenn 1. der Rechtsstreit im ersten Rechtszug nicht als Anwaltsprozess zu führen ist oder war, 2. die Beschwerde die Prozesskostenhilfe betrifft oder 3. sie von einem Zeugen, Sachverständigen oder Dritten im Sinne der §§ 142, 144 erhoben wird.
§ 570 Aufschiebende Wirkung; einstweilige Anordnungen
(1) Die Beschwerde hat nur dann aufschiebende Wirkung, wenn sie die Festsetzung eines Ordnungs- oder Zwangsmittels zum Gegenstand hat.
(2) Das Gericht oder der Vorsitzende, dessen Entscheidung angefochten wird, kann die Vollziehung der Entscheidung aussetzen.
(3) Das Beschwerdegericht kann vor der Entscheidung eine einstweilige Anordnung erlassen; es kann insbesondere die Vollziehung der angefochtenen Entscheidung aussetzen.
§ 571 Begründung, Präklusion, Ausnahmen vom Anwaltszwang
(1) Die Beschwerde soll begründet werden.
(2) Die Beschwerde kann auf neue Angriffs- und Verteidigungsmittel gestützt werden. Sie kann nicht darauf gestützt werden, dass das Gericht des ersten Rechtszuges seine Zuständigkeit zu Unrecht angenommen hat.
(3) Der Vorsitzende oder das Beschwerdegericht kann für das Vorbringen von Angriffs- und Verteidigungsmitteln eine Frist setzen. Werden Angriffs- und Verteidigungsmittel nicht innerhalb der Frist vorgebracht, so sind sie nur zuzulassen, wenn nach der freien Überzeugung des Gerichts ihre Zulassung die Erledigung des Verfahrens nicht verzögern würde oder wenn die Partei die Verspätung genügend entschuldigt. Der Entschuldigungsgrund ist auf Verlangen des Gerichts glaubhaft zu machen.
(4) Ordnet das Gericht eine schriftliche Erklärung an, so kann diese zu Protokoll der Geschäftsstelle abgegeben werden, wenn die Beschwerde zu Protokoll der Geschäftsstelle eingelegt werden darf (§ 569 Abs. 3).
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§ 572 Gang des Beschwerdeverfahrens
(1) Erachtet das Gericht oder der Vorsitzende, dessen Entscheidung angefochten wird, die Beschwerde für begründet, so haben sie ihr abzuhelfen; andernfalls ist die Beschwerde unverzüglich dem Beschwerdegericht vorzulegen. § 318 bleibt unberührt.
(2) Das Beschwerdegericht hat von Amts wegen zu prüfen, ob die Beschwerde an sich statthaft und ob sie in der gesetzlichen Form und Frist eingelegt ist. Mangelt es an einem dieser Erfordernisse, so ist die Beschwerde als unzulässig zu verwerfen.
(3) Erachtet das Beschwerdegericht die Beschwerde für begründet, so kann es dem Gericht oder Vorsitzenden, von dem die beschwerende Entscheidung erlassen war, die erforderliche Anordnung übertragen.
(4) Die Entscheidung über die Beschwerde ergeht durch Beschluss.
§ 573 Erinnerung
(1) Gegen die Entscheidungen des beauftragten oder ersuchten Richters oder des Urkundsbeamten der Geschäftsstelle kann binnen einer Notfrist von zwei Wochen die Entscheidung des Gerichts beantragt werden (Erinnerung). Die Erinnerung ist schriftlich oder zu Protokoll der Geschäftsstelle einzulegen. § 569 Abs. 1 Satz 1 und 2, Abs. 2 und die §§ 570 und 572 gelten entsprechend.
(2) Gegen die im ersten Rechtszug ergangene Entscheidung des Gerichts über die Erinnerung findet die sofortige Beschwerde statt.
(3) Die Vorschrift des Absatzes 1 gilt auch für die Oberlandesgerichte und den Bundesgerichtshof.
Titel 2 Rechtsbeschwerde § 574 Rechtsbeschwerde; Anschlussrechtsbeschwerde
(1) Gegen einen Beschluss ist die Rechtsbeschwerde statthaft, wenn 1. dies im Gesetz ausdrücklich bestimmt ist oder 2. das Beschwerdegericht, das Berufungsgericht oder das Oberlandesgericht im ersten Rechtszug sie in dem
Beschluss zugelassen hat. § 542 Abs. 2 gilt entsprechend.
(2) In den Fällen des Absatzes 1 Nr. 1 ist die Rechtsbeschwerde nur zulässig, wenn 1. die Rechtssache grundsätzliche Bedeutung hat oder 2. die Fortbildung des Rechts oder die Sicherung einer einheitlichen Rechtsprechung eine Entscheidung des
Rechtsbeschwerdegerichts erfordert.
(3) In den Fällen des Absatzes 1 Nr. 2 ist die Rechtsbeschwerde zuzulassen, wenn die Voraussetzungen des Absatzes 2 vorliegen. Das Rechtsbeschwerdegericht ist an die Zulassung gebunden.
(4) Der Rechtsbeschwerdegegner kann sich bis zum Ablauf einer Notfrist von einem Monat nach der Zustellung der Begründungsschrift der Rechtsbeschwerde durch Einreichen der Rechtsbeschwerdeanschlussschrift beim Rechtsbeschwerdegericht anschließen, auch wenn er auf die Rechtsbeschwerde verzichtet hat, die Rechtsbeschwerdefrist verstrichen oder die Rechtsbeschwerde nicht zugelassen worden ist. Die Anschlussbeschwerde ist in der Anschlussschrift zu begründen. Die Anschließung verliert ihre Wirkung, wenn die Rechtsbeschwerde zurückgenommen oder als unzulässig verworfen wird.
§ 575 Frist, Form und Begründung der Rechtsbeschwerde
(1) Die Rechtsbeschwerde ist binnen einer Notfrist von einem Monat nach Zustellung des Beschlusses durch Einreichen einer Beschwerdeschrift bei dem Rechtsbeschwerdegericht einzulegen. Die Rechtsbeschwerdeschrift muss enthalten:
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1. die Bezeichnung der Entscheidung, gegen die die Rechtsbeschwerde gerichtet wird und 2. die Erklärung, dass gegen diese Entscheidung Rechtsbeschwerde eingelegt werde. Mit der Rechtsbeschwerdeschrift soll eine Ausfertigung oder beglaubigte Abschrift der angefochtenen Entscheidung vorgelegt werden.
(2) Die Rechtsbeschwerde ist, sofern die Beschwerdeschrift keine Begründung enthält, binnen einer Frist von einem Monat zu begründen. Die Frist beginnt mit der Zustellung der angefochtenen Entscheidung. § 551 Abs. 2 Satz 5 und 6 gilt entsprechend.
(3) Die Begründung der Rechtsbeschwerde muss enthalten: 1. die Erklärung, inwieweit die Entscheidung des Beschwerdegerichts oder des Berufungsgerichts angefochten
und deren Aufhebung beantragt werde (Rechtsbeschwerdeanträge), 2. in den Fällen des § 574 Abs. 1 Nr. 1 eine Darlegung zu den Zulässigkeitsvoraussetzungen des § 574 Abs. 2, 3. die Angabe der Rechtsbeschwerdegründe, und zwar
a) die bestimmte Bezeichnung der Umstände, aus denen sich die Rechtsverletzung ergibt; b) soweit die Rechtsbeschwerde darauf gestützt wird, dass das Gesetz in Bezug auf das Verfahren verletzt
sei, die Bezeichnung der Tatsachen, die den Mangel ergeben.
(4) Die allgemeinen Vorschriften über die vorbereitenden Schriftsätze sind auch auf die Beschwerde- und die Begründungsschrift anzuwenden. Die Beschwerde- und die Begründungsschrift sind der Gegenpartei zuzustellen.
(5) Die §§ 541 und 570 Abs. 1, 3 gelten entsprechend.
§ 576 Gründe der Rechtsbeschwerde
(1) Die Rechtsbeschwerde kann nur darauf gestützt werden, dass die Entscheidung auf der Verletzung des Bundesrechts oder einer Vorschrift beruht, deren Geltungsbereich sich über den Bezirk eines Oberlandesgerichts hinaus erstreckt.
(2) Die Rechtsbeschwerde kann nicht darauf gestützt werden, dass das Gericht des ersten Rechtszuges seine Zuständigkeit zu Unrecht angenommen oder verneint hat.
(3) Die §§ 546, 547, 556 und 560 gelten entsprechend.
§ 577 Prüfung und Entscheidung der Rechtsbeschwerde
(1) Das Rechtsbeschwerdegericht hat von Amts wegen zu prüfen, ob die Rechtsbeschwerde an sich statthaft und ob sie in der gesetzlichen Form und Frist eingelegt und begründet ist. Mangelt es an einem dieser Erfordernisse, so ist die Rechtsbeschwerde als unzulässig zu verwerfen.
(2) Der Prüfung des Rechtsbeschwerdegerichts unterliegen nur die von den Parteien gestellten Anträge. Das Rechtsbeschwerdegericht ist an die geltend gemachten Rechtsbeschwerdegründe nicht gebunden. Auf Verfahrensmängel, die nicht von Amts wegen zu berücksichtigen sind, darf die angefochtene Entscheidung nur geprüft werden, wenn die Mängel nach § 575 Abs. 3 und § 574 Abs. 4 Satz 2 gerügt worden sind. § 559 gilt entsprechend.
(3) Ergibt die Begründung der angefochtenen Entscheidung zwar eine Rechtsverletzung, stellt die Entscheidung selbst aber aus anderen Gründen sich als richtig dar, so ist die Rechtsbeschwerde zurückzuweisen.
(4) Wird die Rechtsbeschwerde für begründet erachtet, ist die angefochtene Entscheidung aufzuheben und die Sache zur erneuten Entscheidung zurückzuverweisen. § 562 Abs. 2 gilt entsprechend. Die Zurückverweisung kann an einen anderen Spruchkörper des Gerichts erfolgen, das die angefochtene Entscheidung erlassen hat. Das Gericht, an das die Sache zurückverwiesen ist, hat die rechtliche Beurteilung, die der Aufhebung zugrunde liegt, auch seiner Entscheidung zugrunde zu legen.
(5) Das Rechtsbeschwerdegericht hat in der Sache selbst zu entscheiden, wenn die Aufhebung der Entscheidung nur wegen Rechtsverletzung bei Anwendung des Rechts auf das festgestellte Sachverhältnis erfolgt und nach letzterem die Sache zur Endentscheidung reif ist. § 563 Abs. 4 gilt entsprechend.
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(6) Die Entscheidung über die Rechtsbeschwerde ergeht durch Beschluss. § 564 gilt entsprechend. Im Übrigen kann von einer Begründung abgesehen werden, wenn sie nicht geeignet wäre, zur Klärung von Rechtsfragen grundsätzlicher Bedeutung, zur Fortbildung des Rechts oder zur Sicherung einer einheitlichen Rechtsprechung beizutragen.
Buch 4 Wiederaufnahme des Verfahrens § 578 Arten der Wiederaufnahme
(1) Die Wiederaufnahme eines durch rechtskräftiges Endurteil geschlossenen Verfahrens kann durch Nichtigkeitsklage und durch Restitutionsklage erfolgen.
(2) Werden beide Klagen von derselben Partei oder von verschiedenen Parteien erhoben, so ist die Verhandlung und Entscheidung über die Restitutionsklage bis zur rechtskräftigen Entscheidung über die Nichtigkeitsklage auszusetzen.
§ 579 Nichtigkeitsklage
(1) Die Nichtigkeitsklage findet statt: 1. wenn das erkennende Gericht nicht vorschriftsmäßig besetzt war; 2. wenn ein Richter bei der Entscheidung mitgewirkt hat, der von der Ausübung des Richteramts kraft
Gesetzes ausgeschlossen war, sofern nicht dieses Hindernis mittels eines Ablehnungsgesuchs oder eines Rechtsmittels ohne Erfolg geltend gemacht ist;
3. wenn bei der Entscheidung ein Richter mitgewirkt hat, obgleich er wegen Besorgnis der Befangenheit abgelehnt und das Ablehnungsgesuch für begründet erklärt war;
4. wenn eine Partei in dem Verfahren nicht nach Vorschrift der Gesetze vertreten war, sofern sie nicht die Prozessführung ausdrücklich oder stillschweigend genehmigt hat.
(2) In den Fällen der Nummern 1, 3 findet die Klage nicht statt, wenn die Nichtigkeit mittels eines Rechtsmittels geltend gemacht werden konnte.
§ 580 Restitutionsklage
Die Restitutionsklage findet statt: 1. wenn der Gegner durch Beeidigung einer Aussage, auf die das Urteil gegründet ist, sich einer vorsätzlichen
oder fahrlässigen Verletzung der Eidespflicht schuldig gemacht hat; 2. wenn eine Urkunde, auf die das Urteil gegründet ist, fälschlich angefertigt oder verfälscht war; 3. wenn bei einem Zeugnis oder Gutachten, auf welches das Urteil gegründet ist, der Zeuge oder
Sachverständige sich einer strafbaren Verletzung der Wahrheitspflicht schuldig gemacht hat; 4. wenn das Urteil von dem Vertreter der Partei oder von dem Gegner oder dessen Vertreter durch eine in
Beziehung auf den Rechtsstreit verübte Straftat erwirkt ist; 5. wenn ein Richter bei dem Urteil mitgewirkt hat, der sich in Beziehung auf den Rechtsstreit einer strafbaren
Verletzung seiner Amtspflichten gegen die Partei schuldig gemacht hat; 6. wenn das Urteil eines ordentlichen Gerichts, eines früheren Sondergerichts oder eines Verwaltungsgerichts,
auf welches das Urteil gegründet ist, durch ein anderes rechtskräftiges Urteil aufgehoben ist; 7. wenn die Partei
a) ein in derselben Sache erlassenes, früher rechtskräftig gewordenes Urteil oder b) eine andere Urkunde auffindet oder zu benutzen in den Stand gesetzt wird, die eine ihr günstigere
Entscheidung herbeigeführt haben würde;
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8. wenn der Europäische Gerichtshof für Menschenrechte eine Verletzung der Europäischen Konvention zum Schutz der Menschenrechte und Grundfreiheiten oder ihrer Protokolle festgestellt hat und das Urteil auf dieser Verletzung beruht.
Fußnote
(+++ § 580 Nr. 8: Zur Anwendung vgl. § 586 Abs. 4 +++)
§ 581 Besondere Voraussetzungen der Restitutionsklage
(1) In den Fällen des vorhergehenden Paragraphen Nummern 1 bis 5 findet die Restitutionsklage nur statt, wenn wegen der Straftat eine rechtskräftige Verurteilung ergangen ist oder wenn die Einleitung oder Durchführung eines Strafverfahrens aus anderen Gründen als wegen Mangels an Beweis nicht erfolgen kann.
(2) Der Beweis der Tatsachen, welche die Restitutionsklage begründen, kann durch den Antrag auf Parteivernehmung nicht geführt werden.
§ 582 Hilfsnatur der Restitutionsklage
Die Restitutionsklage ist nur zulässig, wenn die Partei ohne ihr Verschulden außerstande war, den Restitutionsgrund in dem früheren Verfahren, insbesondere durch Einspruch oder Berufung oder mittels Anschließung an eine Berufung, geltend zu machen.
§ 583 Vorentscheidungen
Mit den Klagen können Anfechtungsgründe, durch die eine dem angefochtenen Urteil vorausgegangene Entscheidung derselben oder einer unteren Instanz betroffen wird, geltend gemacht werden, sofern das angefochtene Urteil auf dieser Entscheidung beruht.
§ 584 Ausschließliche Zuständigkeit für Nichtigkeits- und Restitutionsklagen
(1) Für die Klagen ist ausschließlich zuständig: das Gericht, das im ersten Rechtszug erkannt hat; wenn das angefochtene Urteil oder auch nur eines von mehreren angefochtenen Urteilen von dem Berufungsgericht erlassen wurde oder wenn ein in der Revisionsinstanz erlassenes Urteil auf Grund des § 580 Nr. 1 bis 3, 6, 7 angefochten wird, das Berufungsgericht; wenn ein in der Revisionsinstanz erlassenes Urteil auf Grund der §§ 579, 580 Nr. 4, 5 angefochten wird, das Revisionsgericht.
(2) Sind die Klagen gegen einen Vollstreckungsbescheid gerichtet, so gehören sie ausschließlich vor das Gericht, das für eine Entscheidung im Streitverfahren zuständig gewesen wäre.
§ 585 Allgemeine Verfahrensgrundsätze
Für die Erhebung der Klagen und das weitere Verfahren gelten die allgemeinen Vorschriften entsprechend, sofern nicht aus den Vorschriften dieses Gesetzes sich eine Abweichung ergibt.
§ 586 Klagefrist
(1) Die Klagen sind vor Ablauf der Notfrist eines Monats zu erheben.
(2) Die Frist beginnt mit dem Tag, an dem die Partei von dem Anfechtungsgrund Kenntnis erhalten hat, jedoch nicht vor eingetretener Rechtskraft des Urteils. Nach Ablauf von fünf Jahren, von dem Tag der Rechtskraft des Urteils an gerechnet, sind die Klagen unstatthaft.
(3) Die Vorschriften des vorstehenden Absatzes sind auf die Nichtigkeitsklage wegen mangelnder Vertretung nicht anzuwenden; die Frist für die Erhebung der Klage läuft von dem Tag, an dem der Partei und bei mangelnder Prozessfähigkeit ihrem gesetzlichen Vertreter das Urteil zugestellt ist.
(4) Die Vorschrift des Absatzes 2 Satz 2 ist auf die Restitutionsklage nach § 580 Nummer 8 nicht anzuwenden.
Fußnote
(+++ § 586 Abs. 2 Satz 2: Zur Anwendung vgl. § 38a ZPOEG +++)
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§ 587 Klageschrift
In der Klage muss die Bezeichnung des Urteils, gegen das die Nichtigkeits- oder Restitutionsklage gerichtet wird, und die Erklärung, welche dieser Klagen erhoben wird, enthalten sein.
§ 588 Inhalt der Klageschrift
(1) Als vorbereitender Schriftsatz soll die Klage enthalten: 1. die Bezeichnung des Anfechtungsgrundes; 2. die Angabe der Beweismittel für die Tatsachen, die den Grund und die Einhaltung der Notfrist ergeben; 3. die Erklärung, inwieweit die Beseitigung des angefochtenen Urteils und welche andere Entscheidung in der
Hauptsache beantragt werde.
(2) Dem Schriftsatz, durch den eine Restitutionsklage erhoben wird, sind die Urkunden, auf die sie gestützt wird, in Urschrift oder in Abschrift beizufügen. Befinden sich die Urkunden nicht in den Händen des Klägers, so hat er zu erklären, welchen Antrag er wegen ihrer Herbeischaffung zu stellen beabsichtigt.
§ 589 Zulässigkeitsprüfung
(1) Das Gericht hat von Amts wegen zu prüfen, ob die Klage an sich statthaft und ob sie in der gesetzlichen Form und Frist erhoben sei. Mangelt es an einem dieser Erfordernisse, so ist die Klage als unzulässig zu verwerfen.
(2) Die Tatsachen, die ergeben, dass die Klage vor Ablauf der Notfrist erhoben ist, sind glaubhaft zu machen.
§ 590 Neue Verhandlung
(1) Die Hauptsache wird, insoweit sie von dem Anfechtungsgrunde betroffen ist, von neuem verhandelt.
(2) Das Gericht kann anordnen, dass die Verhandlung und Entscheidung über Grund und Zulässigkeit der Wiederaufnahme des Verfahrens vor der Verhandlung über die Hauptsache erfolge. In diesem Fall ist die Verhandlung über die Hauptsache als Fortsetzung der Verhandlung über Grund und Zulässigkeit der Wiederaufnahme des Verfahrens anzusehen.
(3) Das für die Klagen zuständige Revisionsgericht hat die Verhandlung über Grund und Zulässigkeit der Wiederaufnahme des Verfahrens zu erledigen, auch wenn diese Erledigung von der Feststellung und Würdigung bestrittener Tatsachen abhängig ist.
§ 591 Rechtsmittel
Rechtsmittel sind insoweit zulässig, als sie gegen die Entscheidungen der mit den Klagen befassten Gerichte überhaupt stattfinden.
Buch 5 Urkunden- und Wechselprozess § 592 Zulässigkeit
Ein Anspruch, welcher die Zahlung einer bestimmten Geldsumme oder die Leistung einer bestimmten Menge anderer vertretbarer Sachen oder Wertpapiere zum Gegenstand hat, kann im Urkundenprozess geltend gemacht werden, wenn die sämtlichen zur Begründung des Anspruchs erforderlichen Tatsachen durch Urkunden bewiesen werden können. Als ein Anspruch, welcher die Zahlung einer Geldsumme zum Gegenstand hat, gilt auch der Anspruch aus einer Hypothek, einer Grundschuld, einer Rentenschuld oder einer Schiffshypothek.
§ 593 Klageinhalt; Urkunden
(1) Die Klage muss die Erklärung enthalten, dass im Urkundenprozess geklagt werde.
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(2) Die Urkunden müssen in Urschrift oder in Abschrift der Klage oder einem vorbereitenden Schriftsatz beigefügt werden. Im letzteren Fall muss zwischen der Zustellung des Schriftsatzes und dem Termin zur mündlichen Verhandlung ein der Einlassungsfrist gleicher Zeitraum liegen.
§ 594
(weggefallen)
§ 595 Keine Widerklage; Beweismittel
(1) Widerklagen sind nicht statthaft.
(2) Als Beweismittel sind bezüglich der Echtheit oder Unechtheit einer Urkunde sowie bezüglich anderer als der im § 592 erwähnten Tatsachen nur Urkunden und Antrag auf Parteivernehmung zulässig.
(3) Der Urkundenbeweis kann nur durch Vorlegung der Urkunden angetreten werden.
§ 596 Abstehen vom Urkundenprozess
Der Kläger kann, ohne dass es der Einwilligung des Beklagten bedarf, bis zum Schluss der mündlichen Verhandlung von dem Urkundenprozess in der Weise abstehen, dass der Rechtsstreit im ordentlichen Verfahren anhängig bleibt.
§ 597 Klageabweisung
(1) Insoweit der in der Klage geltend gemachte Anspruch an sich oder infolge einer Einrede des Beklagten als unbegründet sich darstellt, ist der Kläger mit dem Anspruch abzuweisen.
(2) Ist der Urkundenprozess unstatthaft, ist insbesondere ein dem Kläger obliegender Beweis nicht mit den im Urkundenprozess zulässigen Beweismitteln angetreten oder mit solchen Beweismitteln nicht vollständig geführt, so wird die Klage als in der gewählten Prozessart unstatthaft abgewiesen, selbst wenn in dem Termin zur mündlichen Verhandlung der Beklagte nicht erschienen ist oder der Klage nur auf Grund von Einwendungen widersprochen hat, die rechtlich unbegründet oder im Urkundenprozess unstatthaft sind.
§ 598 Zurückweisung von Einwendungen
Einwendungen des Beklagten sind, wenn der dem Beklagten obliegende Beweis nicht mit den im Urkundenprozess zulässigen Beweismitteln angetreten oder mit solchen Beweismitteln nicht vollständig geführt ist, als im Urkundenprozess unstatthaft zurückzuweisen.
§ 599 Vorbehaltsurteil
(1) Dem Beklagten, welcher dem geltend gemachten Anspruch widersprochen hat, ist in allen Fällen, in denen er verurteilt wird, die Ausführung seiner Rechte vorzubehalten.
(2) Enthält das Urteil keinen Vorbehalt, so kann die Ergänzung des Urteils nach der Vorschrift des § 321 beantragt werden.
(3) Das Urteil, das unter Vorbehalt der Rechte ergeht, ist für die Rechtsmittel und die Zwangsvollstreckung als Endurteil anzusehen.
§ 600 Nachverfahren
(1) Wird dem Beklagten die Ausführung seiner Rechte vorbehalten, so bleibt der Rechtsstreit im ordentlichen Verfahren anhängig.
(2) Soweit sich in diesem Verfahren ergibt, dass der Anspruch des Klägers unbegründet war, gelten die Vorschriften des § 302 Abs. 4 Satz 2 bis 4.
(3) Erscheint in diesem Verfahren eine Partei nicht, so sind die Vorschriften über das Versäumnisurteil entsprechend anzuwenden.
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§ 601
(weggefallen)
§ 602 Wechselprozess
Werden im Urkundenprozess Ansprüche aus Wechseln im Sinne des Wechselgesetzes geltend gemacht (Wechselprozess), so sind die nachfolgenden besonderen Vorschriften anzuwenden.
§ 603 Gerichtsstand
(1) Wechselklagen können sowohl bei dem Gericht des Zahlungsortes als bei dem Gericht angestellt werden, bei dem der Beklagte seinen allgemeinen Gerichtsstand hat.
(2) Wenn mehrere Wechselverpflichtete gemeinschaftlich verklagt werden, so ist außer dem Gericht des Zahlungsortes jedes Gericht zuständig, bei dem einer der Beklagten seinen allgemeinen Gerichtsstand hat.
§ 604 Klageinhalt; Ladungsfrist
(1) Die Klage muss die Erklärung enthalten, dass im Wechselprozess geklagt werde.
(2) Die Ladungsfrist beträgt mindestens 24 Stunden, wenn die Ladung an dem Ort, der Sitz des Prozessgerichts ist, zugestellt wird. In Anwaltsprozessen beträgt sie mindestens drei Tage, wenn die Ladung an einem anderen Ort zugestellt wird, der im Bezirk des Prozessgerichts liegt oder von dem ein Teil zu dessen Bezirk gehört.
(3) In den höheren Instanzen beträgt die Ladungsfrist mindestens 24 Stunden, wenn die Zustellung der Berufungs- oder Revisionsschrift oder der Ladung an dem Ort erfolgt, der Sitz des höheren Gerichts ist; mindestens drei Tage, wenn die Zustellung an einem anderen Ort erfolgt, der ganz oder zum Teil in dem Landgerichtsbezirk liegt, in dem das höhere Gericht seinen Sitz hat; mindestens eine Woche, wenn die Zustellung sonst im Inland erfolgt.
§ 605 Beweisvorschriften
(1) Soweit es zur Erhaltung des wechselmäßigen Anspruchs der rechtzeitigen Protesterhebung nicht bedarf, ist als Beweismittel bezüglich der Vorlegung des Wechsels der Antrag auf Parteivernehmung zulässig.
(2) Zur Berücksichtigung einer Nebenforderung genügt, dass sie glaubhaft gemacht ist.
§ 605a Scheckprozess
Werden im Urkundenprozess Ansprüche aus Schecks im Sinne des Scheckgesetzes geltend gemacht (Scheckprozess), so sind die §§ 602 bis 605 entsprechend anzuwenden.
Buch 6 (weggefallen) §§ 606 bis 687 (weggefallen)
Buch 7 Mahnverfahren § 688 Zulässigkeit
(1) Wegen eines Anspruchs, der die Zahlung einer bestimmten Geldsumme in Euro zum Gegenstand hat, ist auf Antrag des Antragstellers ein Mahnbescheid zu erlassen.
(2) Das Mahnverfahren findet nicht statt: 1. für Ansprüche eines Unternehmers aus einem Vertrag gemäß den §§ 491 bis 509 des Bürgerlichen
Gesetzbuchs, wenn der gemäß § 492 Abs. 2 des Bürgerlichen Gesetzbuchs anzugebende effektive Jahreszins
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den bei Vertragsschluss geltenden Basiszinssatz nach § 247 des Bürgerlichen Gesetzbuchs um mehr als zwölf Prozentpunkte übersteigt;
2. wenn die Geltendmachung des Anspruchs von einer noch nicht erbrachten Gegenleistung abhängig ist; 3. wenn die Zustellung des Mahnbescheids durch öffentliche Bekanntmachung erfolgen müsste.
(3) Müsste der Mahnbescheid im Ausland zugestellt werden, findet das Mahnverfahren nur statt, soweit das Anerkennungs- und Vollstreckungsausführungsgesetz vom 19. Februar 2001 (BGBl. I S. 288) dies vorsieht.
(4) Die Vorschriften der Verordnung (EG) Nr. 1896/2006 des Europäischen Parlaments und des Rates vom 12. Dezember 2006 zur Einführung eines Europäischen Mahnverfahrens (ABl. EU Nr. L 399 S. 1) bleiben unberührt. Für die Durchführung gelten die §§ 1087 bis 1096.
§ 689 Zuständigkeit; maschinelle Bearbeitung
(1) Das Mahnverfahren wird von den Amtsgerichten durchgeführt. Eine maschinelle Bearbeitung ist zulässig. Bei dieser Bearbeitung sollen Eingänge spätestens an dem Arbeitstag erledigt sein, der dem Tag des Eingangs folgt.
(2) Ausschließlich zuständig ist das Amtsgericht, bei dem der Antragsteller seinen allgemeinen Gerichtsstand hat. Hat der Antragsteller im Inland keinen allgemeinen Gerichtsstand, so ist das Amtsgericht Wedding in Berlin ausschließlich zuständig. Sätze 1 und 2 gelten auch, soweit in anderen Vorschriften eine andere ausschließliche Zuständigkeit bestimmt ist.
(3) Die Landesregierungen werden ermächtigt, durch Rechtsverordnung Mahnverfahren einem Amtsgericht für die Bezirke mehrerer Amtsgerichte zuzuweisen, wenn dies ihrer schnelleren und rationelleren Erledigung dient. Die Zuweisung kann auf Mahnverfahren beschränkt werden, die maschinell bearbeitet werden. Die Landesregierungen können die Ermächtigung durch Rechtsverordnung auf die Landesjustizverwaltungen übertragen. Mehrere Länder können die Zuständigkeit eines Amtsgerichts über die Landesgrenzen hinaus vereinbaren.
§ 690 Mahnantrag
(1) Der Antrag muss auf den Erlass eines Mahnbescheids gerichtet sein und enthalten: 1. die Bezeichnung der Parteien, ihrer gesetzlichen Vertreter und der Prozessbevollmächtigten; 2. die Bezeichnung des Gerichts, bei dem der Antrag gestellt wird; 3. die Bezeichnung des Anspruchs unter bestimmter Angabe der verlangten Leistung; Haupt- und
Nebenforderungen sind gesondert und einzeln zu bezeichnen, Ansprüche aus Verträgen gemäß den §§ 491 bis 509 des Bürgerlichen Gesetzbuchs, auch unter Angabe des Datums des Vertragsabschlusses und des gemäß § 492 Abs. 2 des Bürgerlichen Gesetzbuchs anzugebenden effektiven Jahreszinses;
4. die Erklärung, dass der Anspruch nicht von einer Gegenleistung abhängt oder dass die Gegenleistung erbracht ist;
5. die Bezeichnung des Gerichts, das für ein streitiges Verfahren zuständig ist.
(2) Der Antrag bedarf der handschriftlichen Unterzeichnung.
(3) Der Antrag kann in einer nur maschinell lesbaren Form übermittelt werden, wenn diese dem Gericht für seine maschinelle Bearbeitung geeignet erscheint. Wird der Antrag von einem Rechtsanwalt oder einer registrierten Person nach § 10 Abs. 1 Satz 1 Nr. 1 des Rechtsdienstleistungsgesetzes gestellt, ist nur diese Form der Antragstellung zulässig. Der handschriftlichen Unterzeichnung bedarf es nicht, wenn in anderer Weise gewährleistet ist, dass der Antrag nicht ohne den Willen des Antragstellers übermittelt wird.
§ 691 Zurückweisung des Mahnantrags
(1) Der Antrag wird zurückgewiesen: 1. wenn er den Vorschriften der §§ 688, 689, 690, 703c Abs. 2 nicht entspricht; 2. wenn der Mahnbescheid nur wegen eines Teiles des Anspruchs nicht erlassen werden kann. Vor der Zurückweisung ist der Antragsteller zu hören.
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(2) Sollte durch die Zustellung des Mahnbescheids eine Frist gewahrt werden oder die Verjährung neu beginnen oder nach § 204 des Bürgerlichen Gesetzbuchs gehemmt werden, so tritt die Wirkung mit der Einreichung oder Anbringung des Antrags auf Erlass des Mahnbescheids ein, wenn innerhalb eines Monats seit der Zustellung der Zurückweisung des Antrags Klage eingereicht und diese demnächst zugestellt wird.
(3) Gegen die Zurückweisung findet die sofortige Beschwerde statt, wenn der Antrag in einer nur maschinell lesbaren Form übermittelt und mit der Begründung zurückgewiesen worden ist, dass diese Form dem Gericht für seine maschinelle Bearbeitung nicht geeignet erscheine. Im Übrigen sind Entscheidungen nach Absatz 1 unanfechtbar.
§ 692 Mahnbescheid
(1) Der Mahnbescheid enthält: 1. die in § 690 Abs. 1 Nr. 1 bis 5 bezeichneten Erfordernisse des Antrags; 2. den Hinweis, dass das Gericht nicht geprüft hat, ob dem Antragsteller der geltend gemachte Anspruch
zusteht; 3. die Aufforderung, innerhalb von zwei Wochen seit der Zustellung des Mahnbescheids, soweit der geltend
gemachte Anspruch als begründet angesehen wird, die behauptete Schuld nebst den geforderten Zinsen und der dem Betrag nach bezeichneten Kosten zu begleichen oder dem Gericht mitzuteilen, ob und in welchem Umfang dem geltend gemachten Anspruch widersprochen wird;
4. den Hinweis, dass ein dem Mahnbescheid entsprechender Vollstreckungsbescheid ergehen kann, aus dem der Antragsteller die Zwangsvollstreckung betreiben kann, falls der Antragsgegner nicht bis zum Fristablauf Widerspruch erhoben hat;
5. für den Fall, dass Formulare eingeführt sind, den Hinweis, dass der Widerspruch mit einem Formular der beigefügten Art erhoben werden soll, das auch bei jedem Amtsgericht erhältlich ist und ausgefüllt werden kann;
6. für den Fall des Widerspruchs die Ankündigung, an welches Gericht die Sache abgegeben wird, mit dem Hinweis, dass diesem Gericht die Prüfung seiner Zuständigkeit vorbehalten bleibt.
(2) An Stelle einer handschriftlichen Unterzeichnung genügt ein entsprechender Stempelabdruck oder eine elektronische Signatur.
§ 693 Zustellung des Mahnbescheids
(1) Der Mahnbescheid wird dem Antragsgegner zugestellt.
(2) Die Geschäftsstelle setzt den Antragsteller von der Zustellung des Mahnbescheids in Kenntnis.
§ 694 Widerspruch gegen den Mahnbescheid
(1) Der Antragsgegner kann gegen den Anspruch oder einen Teil des Anspruchs bei dem Gericht, das den Mahnbescheid erlassen hat, schriftlich Widerspruch erheben, solange der Vollstreckungsbescheid nicht verfügt ist.
(2) Ein verspäteter Widerspruch wird als Einspruch behandelt. Dies ist dem Antragsgegner, der den Widerspruch erhoben hat, mitzuteilen.
§ 695 Mitteilung des Widerspruchs; Abschriften
Das Gericht hat den Antragsteller von dem Widerspruch und dem Zeitpunkt seiner Erhebung in Kenntnis zu setzen. Wird das Mahnverfahren nicht maschinell bearbeitet, so soll der Antragsgegner die erforderliche Zahl von Abschriften mit dem Widerspruch einreichen.
§ 696 Verfahren nach Widerspruch
(1) Wird rechtzeitig Widerspruch erhoben und beantragt eine Partei die Durchführung des streitigen Verfahrens, so gibt das Gericht, das den Mahnbescheid erlassen hat, den Rechtsstreit von Amts wegen an das Gericht ab, das in dem Mahnbescheid gemäß § 692 Abs. 1 Nr. 1 bezeichnet worden ist, wenn die Parteien übereinstimmend
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die Abgabe an ein anderes Gericht verlangen, an dieses. Der Antrag kann in den Antrag auf Erlass des Mahnbescheids aufgenommen werden. Die Abgabe ist den Parteien mitzuteilen; sie ist nicht anfechtbar. Mit Eingang der Akten bei dem Gericht, an das er abgegeben wird, gilt der Rechtsstreit als dort anhängig. § 281 Abs. 3 Satz 1 gilt entsprechend.
(2) Ist das Mahnverfahren maschinell bearbeitet worden, so tritt, sofern die Akte nicht elektronisch übermittelt wird, an die Stelle der Akten ein maschinell erstellter Aktenausdruck. Für diesen gelten die Vorschriften über die Beweiskraft öffentlicher Urkunden entsprechend. § 298 findet keine Anwendung.
(3) Die Streitsache gilt als mit Zustellung des Mahnbescheids rechtshängig geworden, wenn sie alsbald nach der Erhebung des Widerspruchs abgegeben wird.
(4) Der Antrag auf Durchführung des streitigen Verfahrens kann bis zum Beginn der mündlichen Verhandlung des Antragsgegners zur Hauptsache zurückgenommen werden. Die Zurücknahme kann vor der Geschäftsstelle zu Protokoll erklärt werden. Mit der Zurücknahme ist die Streitsache als nicht rechtshängig geworden anzusehen.
(5) Das Gericht, an das der Rechtsstreit abgegeben ist, ist hierdurch in seiner Zuständigkeit nicht gebunden.
§ 697 Einleitung des Streitverfahrens
(1) Die Geschäftsstelle des Gerichts, an das die Streitsache abgegeben wird, hat dem Antragsteller unverzüglich aufzugeben, seinen Anspruch binnen zwei Wochen in einer der Klageschrift entsprechenden Form zu begründen. § 270 Satz 2 gilt entsprechend.
(2) Bei Eingang der Anspruchsbegründung ist wie nach Eingang einer Klage weiter zu verfahren. Zur schriftlichen Klageerwiderung im Vorverfahren nach § 276 kann auch eine mit der Zustellung der Anspruchsbegründung beginnende Frist gesetzt werden.
(3) Geht die Anspruchsbegründung nicht rechtzeitig ein, so wird bis zu ihrem Eingang Termin zur mündlichen Verhandlung nur auf Antrag des Antragsgegners bestimmt. Mit der Terminsbestimmung setzt der Vorsitzende dem Antragsteller eine Frist zur Begründung des Anspruchs; § 296 Abs. 1, 4 gilt entsprechend.
(4) Der Antragsgegner kann den Widerspruch bis zum Beginn seiner mündlichen Verhandlung zur Hauptsache zurücknehmen, jedoch nicht nach Erlass eines Versäumnisurteils gegen ihn. Die Zurücknahme kann zu Protokoll der Geschäftsstelle erklärt werden.
(5) Zur Herstellung eines Urteils in abgekürzter Form nach § 313b Abs. 2, § 317 Abs. 6 kann der Mahnbescheid an Stelle der Klageschrift benutzt werden. Ist das Mahnverfahren maschinell bearbeitet worden, so tritt an die Stelle der Klageschrift der maschinell erstellte Aktenausdruck.
§ 698 Abgabe des Verfahrens am selben Gericht
Die Vorschriften über die Abgabe des Verfahrens gelten sinngemäß, wenn Mahnverfahren und streitiges Verfahren bei demselben Gericht durchgeführt werden.
§ 699 Vollstreckungsbescheid
(1) Auf der Grundlage des Mahnbescheids erlässt das Gericht auf Antrag einen Vollstreckungsbescheid, wenn der Antragsgegner nicht rechtzeitig Widerspruch erhoben hat. Der Antrag kann nicht vor Ablauf der Widerspruchsfrist gestellt werden; er hat die Erklärung zu enthalten, ob und welche Zahlungen auf den Mahnbescheid geleistet worden sind; § 690 Abs. 3 Satz 1 und 3 gilt entsprechend. Ist der Rechtsstreit bereits an ein anderes Gericht abgegeben, so erlässt dieses den Vollstreckungsbescheid.
(2) Soweit das Mahnverfahren nicht maschinell bearbeitet wird, kann der Vollstreckungsbescheid auf den Mahnbescheid gesetzt werden.
(3) In den Vollstreckungsbescheid sind die bisher entstandenen Kosten des Verfahrens aufzunehmen. Der Antragsteller braucht die Kosten nur zu berechnen, wenn das Mahnverfahren nicht maschinell bearbeitet wird; im Übrigen genügen die zur maschinellen Berechnung erforderlichen Angaben.
(4) Der Vollstreckungsbescheid wird dem Antragsgegner von Amts wegen zugestellt, wenn nicht der Antragsteller die Übermittlung an sich zur Zustellung im Parteibetrieb beantragt hat. In diesen Fällen wird der
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Vollstreckungsbescheid dem Antragsteller zur Zustellung übermittelt; die Geschäftsstelle des Gerichts vermittelt diese Zustellung nicht. Bewilligt das mit dem Mahnverfahren befasste Gericht die öffentliche Zustellung, so wird die Benachrichtigung nach § 186 Abs. 2 Satz 2 und 3 an die Gerichtstafel des Gerichts angeheftet oder in das Informationssystem des Gerichts eingestellt, das in dem Mahnbescheid gemäß § 692 Abs. 1 Nr. 1 bezeichnet worden ist.
(5) Die Belehrung gemäß § 232 ist dem Antragsgegner zusammen mit der Zustellung des Vollstreckungsbescheids schriftlich mitzuteilen.
§ 700 Einspruch gegen den Vollstreckungsbescheid
(1) Der Vollstreckungsbescheid steht einem für vorläufig vollstreckbar erklärten Versäumnisurteil gleich.
(2) Die Streitsache gilt als mit der Zustellung des Mahnbescheids rechtshängig geworden.
(3) Wird Einspruch eingelegt, so gibt das Gericht, das den Vollstreckungsbescheid erlassen hat, den Rechtsstreit von Amts wegen an das Gericht ab, das in dem Mahnbescheid gemäß § 692 Abs. 1 Nr. 1 bezeichnet worden ist, wenn die Parteien übereinstimmend die Abgabe an ein anderes Gericht verlangen, an dieses. § 696 Abs. 1 Satz 3 bis 5, Abs. 2, 5, § 697 Abs. 1, 4, § 698 gelten entsprechend. § 340 Abs. 3 ist nicht anzuwenden.
(4) Bei Eingang der Anspruchsbegründung ist wie nach Eingang einer Klage weiter zu verfahren, wenn der Einspruch nicht als unzulässig verworfen wird. § 276 Abs. 1 Satz 1, 3, Abs. 2 ist nicht anzuwenden.
(5) Geht die Anspruchsbegründung innerhalb der von der Geschäftsstelle gesetzten Frist nicht ein und wird der Einspruch auch nicht als unzulässig verworfen, bestimmt der Vorsitzende unverzüglich Termin; § 697 Abs. 3 Satz 2 gilt entsprechend.
(6) Der Einspruch darf nach § 345 nur verworfen werden, soweit die Voraussetzungen des § 331 Abs. 1, 2 erster Halbsatz für ein Versäumnisurteil vorliegen; soweit die Voraussetzungen nicht vorliegen, wird der Vollstreckungsbescheid aufgehoben.
§ 701 Wegfall der Wirkung des Mahnbescheids
Ist Widerspruch nicht erhoben und beantragt der Antragsteller den Erlass des Vollstreckungsbescheids nicht binnen einer sechsmonatigen Frist, die mit der Zustellung des Mahnbescheids beginnt, so fällt die Wirkung des Mahnbescheids weg. Dasselbe gilt, wenn der Vollstreckungsbescheid rechtzeitig beantragt ist, der Antrag aber zurückgewiesen wird.
§ 702 Form von Anträgen und Erklärungen
(1) Im Mahnverfahren können die Anträge und Erklärungen vor dem Urkundsbeamten der Geschäftsstelle abgegeben werden. Soweit Formulare eingeführt sind, werden diese ausgefüllt; der Urkundsbeamte vermerkt unter Angabe des Gerichts und des Datums, dass er den Antrag oder die Erklärung aufgenommen hat. Auch soweit Formulare nicht eingeführt sind, ist für den Antrag auf Erlass eines Mahnbescheids oder eines Vollstreckungsbescheids bei dem für das Mahnverfahren zuständigen Gericht die Aufnahme eines Protokolls nicht erforderlich.
(2) Der Antrag auf Erlass eines Mahnbescheids oder eines Vollstreckungsbescheids wird dem Antragsgegner nicht mitgeteilt.
§ 703 Kein Nachweis der Vollmacht
Im Mahnverfahren bedarf es des Nachweises einer Vollmacht nicht. Wer als Bevollmächtigter einen Antrag einreicht oder einen Rechtsbehelf einlegt, hat seine ordnungsgemäße Bevollmächtigung zu versichern.
§ 703a Urkunden-, Wechsel- und Scheckmahnverfahren
(1) Ist der Antrag des Antragstellers auf den Erlass eines Urkunden-, Wechsel- oder Scheckmahnbescheids gerichtet, so wird der Mahnbescheid als Urkunden-, Wechsel- oder Scheckmahnbescheid bezeichnet.
(2) Für das Urkunden-, Wechsel- und Scheckmahnverfahren gelten folgende besondere Vorschriften:
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1. die Bezeichnung als Urkunden-, Wechsel- oder Scheckmahnbescheid hat die Wirkung, dass die Streitsache, wenn rechtzeitig Widerspruch erhoben wird, im Urkunden-, Wechsel- oder Scheckprozess anhängig wird;
2. die Urkunden sollen in dem Antrag auf Erlass des Mahnbescheids und in dem Mahnbescheid bezeichnet werden; ist die Sache an das Streitgericht abzugeben, so müssen die Urkunden in Urschrift oder in Abschrift der Anspruchsbegründung beigefügt werden;
3. im Mahnverfahren ist nicht zu prüfen, ob die gewählte Prozessart statthaft ist; 4. beschränkt sich der Widerspruch auf den Antrag, dem Beklagten die Ausführung seiner Rechte
vorzubehalten, so ist der Vollstreckungsbescheid unter diesem Vorbehalt zu erlassen. Auf das weitere Verfahren ist die Vorschrift des § 600 entsprechend anzuwenden.
§ 703b Sonderregelungen für maschinelle Bearbeitung
(1) Bei maschineller Bearbeitung werden Beschlüsse, Verfügungen, Ausfertigungen und Vollstreckungsklauseln mit dem Gerichtssiegel versehen; einer Unterschrift bedarf es nicht.
(2) Der Bundesminister der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates den Verfahrensablauf zu regeln, soweit dies für eine einheitliche maschinelle Bearbeitung der Mahnverfahren erforderlich ist (Verfahrensablaufplan).
§ 703c Formulare; Einführung der maschinellen Bearbeitung
(1) Der Bundesminister der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates zur Vereinfachung des Mahnverfahrens und zum Schutze der in Anspruch genommenen Partei Formulare einzuführen. Für 1. Mahnverfahren bei Gerichten, die die Verfahren maschinell bearbeiten, 2. Mahnverfahren bei Gerichten, die die Verfahren nicht maschinell bearbeiten, 3. Mahnverfahren, in denen der Mahnbescheid im Ausland zuzustellen ist, 4. Mahnverfahren, in denen der Mahnbescheid nach Artikel 32 des Zusatzabkommens zum NATO-
Truppenstatut vom 3. August 1959 (BGBl. 1961 II S. 1183, 1218) zuzustellen ist, können unterschiedliche Formulare eingeführt werden.
(2) Soweit nach Absatz 1 Formulare für Anträge und Erklärungen der Parteien eingeführt sind, müssen sich die Parteien ihrer bedienen.
(3) Die Landesregierungen bestimmen durch Rechtsverordnung den Zeitpunkt, in dem bei einem Amtsgericht die maschinelle Bearbeitung der Mahnverfahren eingeführt wird; sie können die Ermächtigung durch Rechtsverordnung auf die Landesjustizverwaltungen übertragen.
§ 703d Antragsgegner ohne allgemeinen inländischen Gerichtsstand
(1) Hat der Antragsgegner keinen allgemeinen Gerichtsstand im Inland, so gelten die nachfolgenden besonderen Vorschriften.
(2) Zuständig für das Mahnverfahren ist das Amtsgericht, das für das streitige Verfahren zuständig sein würde, wenn die Amtsgerichte im ersten Rechtszug sachlich unbeschränkt zuständig wären. § 689 Abs. 3 gilt entsprechend.
Buch 8 Zwangsvollstreckung
Abschnitt 1 Allgemeine Vorschriften § 704 Vollstreckbare Endurteile
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Die Zwangsvollstreckung findet statt aus Endurteilen, die rechtskräftig oder für vorläufig vollstreckbar erklärt sind.
§ 705 Formelle Rechtskraft
Die Rechtskraft der Urteile tritt vor Ablauf der für die Einlegung des zulässigen Rechtsmittels oder des zulässigen Einspruchs bestimmten Frist nicht ein. Der Eintritt der Rechtskraft wird durch rechtzeitige Einlegung des Rechtsmittels oder des Einspruchs gehemmt.
§ 706 Rechtskraft- und Notfristzeugnis
(1) Zeugnisse über die Rechtskraft der Urteile sind auf Grund der Prozessakten von der Geschäftsstelle des Gerichts des ersten Rechtszuges und, solange der Rechtsstreit in einem höheren Rechtszug anhängig ist, von der Geschäftsstelle des Gerichts dieses Rechtszuges zu erteilen.
(2) Soweit die Erteilung des Zeugnisses davon abhängt, dass gegen das Urteil ein Rechtsmittel nicht eingelegt ist, holt die Geschäftsstelle des Gerichts des ersten Rechtszuges bei der Geschäftsstelle des für das Rechtsmittel zuständigen Gerichts eine Mitteilung in Textform ein, dass bis zum Ablauf der Notfrist eine Rechtsmittelschrift nicht eingereicht sei. Einer Mitteilung durch die Geschäftsstelle des Revisionsgerichts, dass ein Antrag auf Zulassung der Revision nach § 566 nicht eingereicht sei, bedarf es nicht.
§ 707 Einstweilige Einstellung der Zwangsvollstreckung
(1) Wird die Wiedereinsetzung in den vorigen Stand oder eine Wiederaufnahme des Verfahrens beantragt oder die Rüge nach § 321a erhoben oder wird der Rechtsstreit nach der Verkündung eines Vorbehaltsurteils fortgesetzt, so kann das Gericht auf Antrag anordnen, dass die Zwangsvollstreckung gegen oder ohne Sicherheitsleistung einstweilen eingestellt werde oder nur gegen Sicherheitsleistung stattfinde und dass die Vollstreckungsmaßregeln gegen Sicherheitsleistung aufzuheben seien. Die Einstellung der Zwangsvollstreckung ohne Sicherheitsleistung ist nur zulässig, wenn glaubhaft gemacht wird, dass der Schuldner zur Sicherheitsleistung nicht in der Lage ist und die Vollstreckung einen nicht zu ersetzenden Nachteil bringen würde.
(2) Die Entscheidung ergeht durch Beschluss. Eine Anfechtung des Beschlusses findet nicht statt.
§ 708 Vorläufige Vollstreckbarkeit ohne Sicherheitsleistung
Für vorläufig vollstreckbar ohne Sicherheitsleistung sind zu erklären: 1. Urteile, die auf Grund eines Anerkenntnisses oder eines Verzichts ergehen; 2. Versäumnisurteile und Urteile nach Lage der Akten gegen die säumige Partei gemäß § 331a; 3. Urteile, durch die gemäß § 341 der Einspruch als unzulässig verworfen wird; 4. Urteile, die im Urkunden-, Wechsel- oder Scheckprozess erlassen werden; 5. Urteile, die ein Vorbehaltsurteil, das im Urkunden-, Wechsel- oder Scheckprozess erlassen wurde, für
vorbehaltlos erklären; 6. Urteile, durch die Arreste oder einstweilige Verfügungen abgelehnt oder aufgehoben werden; 7. Urteile in Streitigkeiten zwischen dem Vermieter und dem Mieter oder Untermieter von Wohnräumen oder
anderen Räumen oder zwischen dem Mieter und dem Untermieter solcher Räume wegen Überlassung, Benutzung oder Räumung, wegen Fortsetzung des Mietverhältnisses über Wohnraum auf Grund der §§ 574 bis 574b des Bürgerlichen Gesetzbuchs sowie wegen Zurückhaltung der von dem Mieter oder dem Untermieter in die Mieträume eingebrachten Sachen;
8. Urteile, die die Verpflichtung aussprechen, Unterhalt, Renten wegen Entziehung einer Unterhaltsforderung oder Renten wegen einer Verletzung des Körpers oder der Gesundheit zu entrichten, soweit sich die Verpflichtung auf die Zeit nach der Klageerhebung und auf das ihr vorausgehende letzte Vierteljahr bezieht;
9. Urteile nach §§ 861, 862 des Bürgerlichen Gesetzbuchs auf Wiedereinräumung des Besitzes oder auf Beseitigung oder Unterlassung einer Besitzstörung;
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10. Berufungsurteile in vermögensrechtlichen Streitigkeiten. Wird die Berufung durch Urteil oder Beschluss gemäß § 522 Absatz 2 zurückgewiesen, ist auszusprechen, dass das angefochtene Urteil ohne Sicherheitsleistung vorläufig vollstreckbar ist;
11. andere Urteile in vermögensrechtlichen Streitigkeiten, wenn der Gegenstand der Verurteilung in der Hauptsache 1.250 Euro nicht übersteigt oder wenn nur die Entscheidung über die Kosten vollstreckbar ist und eine Vollstreckung im Wert von nicht mehr als 1.500 Euro ermöglicht.
§ 709 Vorläufige Vollstreckbarkeit gegen Sicherheitsleistung
Andere Urteile sind gegen eine der Höhe nach zu bestimmende Sicherheit für vorläufig vollstreckbar zu erklären. Soweit wegen einer Geldforderung zu vollstrecken ist, genügt es, wenn die Höhe der Sicherheitsleistung in einem bestimmten Verhältnis zur Höhe des jeweils zu vollstreckenden Betrages angegeben wird. Handelt es sich um ein Urteil, das ein Versäumnisurteil aufrechterhält, so ist auszusprechen, dass die Vollstreckung aus dem Versäumnisurteil nur gegen Leistung der Sicherheit fortgesetzt werden darf.
§ 710 Ausnahmen von der Sicherheitsleistung des Gläubigers
Kann der Gläubiger die Sicherheit nach § 709 nicht oder nur unter erheblichen Schwierigkeiten leisten, so ist das Urteil auf Antrag auch ohne Sicherheitsleistung für vorläufig vollstreckbar zu erklären, wenn die Aussetzung der Vollstreckung dem Gläubiger einen schwer zu ersetzenden oder schwer abzusehenden Nachteil bringen würde oder aus einem sonstigen Grund für den Gläubiger unbillig wäre, insbesondere weil er die Leistung für seine Lebenshaltung oder seine Erwerbstätigkeit dringend benötigt.
§ 711 Abwendungsbefugnis
In den Fällen des § 708 Nr. 4 bis 11 hat das Gericht auszusprechen, dass der Schuldner die Vollstreckung durch Sicherheitsleistung oder Hinterlegung abwenden darf, wenn nicht der Gläubiger vor der Vollstreckung Sicherheit leistet. § 709 Satz 2 gilt entsprechend, für den Schuldner jedoch mit der Maßgabe, dass Sicherheit in einem bestimmten Verhältnis zur Höhe des auf Grund des Urteils vollstreckbaren Betrages zu leisten ist. Für den Gläubiger gilt § 710 entsprechend.
§ 712 Schutzantrag des Schuldners
(1) Würde die Vollstreckung dem Schuldner einen nicht zu ersetzenden Nachteil bringen, so hat ihm das Gericht auf Antrag zu gestatten, die Vollstreckung durch Sicherheitsleistung oder Hinterlegung ohne Rücksicht auf eine Sicherheitsleistung des Gläubigers abzuwenden; § 709 Satz 2 gilt in den Fällen des § 709 Satz 1 entsprechend. Ist der Schuldner dazu nicht in der Lage, so ist das Urteil nicht für vorläufig vollstreckbar zu erklären oder die Vollstreckung auf die in § 720a Abs. 1, 2 bezeichneten Maßregeln zu beschränken.
(2) Dem Antrag des Schuldners ist nicht zu entsprechen, wenn ein überwiegendes Interesse des Gläubigers entgegensteht. In den Fällen des § 708 kann das Gericht anordnen, dass das Urteil nur gegen Sicherheitsleistung vorläufig vollstreckbar ist.
§ 713 Unterbleiben von Schuldnerschutzanordnungen
Die in den §§ 711, 712 zugunsten des Schuldners zugelassenen Anordnungen sollen nicht ergehen, wenn die Voraussetzungen, unter denen ein Rechtsmittel gegen das Urteil stattfindet, unzweifelhaft nicht vorliegen.
§ 714 Anträge zur vorläufigen Vollstreckbarkeit
(1) Anträge nach den §§ 710, 711 Satz 3, § 712 sind vor Schluss der mündlichen Verhandlung zu stellen, auf die das Urteil ergeht.
(2) Die tatsächlichen Voraussetzungen sind glaubhaft zu machen.
§ 715 Rückgabe der Sicherheit
(1) Das Gericht, das eine Sicherheitsleistung des Gläubigers angeordnet oder zugelassen hat, ordnet auf Antrag die Rückgabe der Sicherheit an, wenn ein Zeugnis über die Rechtskraft des für vorläufig vollstreckbar erklärten Urteils vorgelegt wird. Ist die Sicherheit durch eine Bürgschaft bewirkt worden, so ordnet das Gericht das Erlöschen der Bürgschaft an.
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(2) § 109 Abs. 3 gilt entsprechend.
§ 716 Ergänzung des Urteils
Ist über die vorläufige Vollstreckbarkeit nicht entschieden, so sind wegen Ergänzung des Urteils die Vorschriften des § 321 anzuwenden.
§ 717 Wirkungen eines aufhebenden oder abändernden Urteils
(1) Die vorläufige Vollstreckbarkeit tritt mit der Verkündung eines Urteils, das die Entscheidung in der Hauptsache oder die Vollstreckbarkeitserklärung aufhebt oder abändert, insoweit außer Kraft, als die Aufhebung oder Abänderung ergeht.
(2) Wird ein für vorläufig vollstreckbar erklärtes Urteil aufgehoben oder abgeändert, so ist der Kläger zum Ersatz des Schadens verpflichtet, der dem Beklagten durch die Vollstreckung des Urteils oder durch eine zur Abwendung der Vollstreckung gemachte Leistung entstanden ist. Der Beklagte kann den Anspruch auf Schadensersatz in dem anhängigen Rechtsstreit geltend machen; wird der Anspruch geltend gemacht, so ist er als zur Zeit der Zahlung oder Leistung rechtshängig geworden anzusehen.
(3) Die Vorschriften des Absatzes 2 sind auf die im § 708 Nr. 10 bezeichneten Berufungsurteile, mit Ausnahme der Versäumnisurteile, nicht anzuwenden. Soweit ein solches Urteil aufgehoben oder abgeändert wird, ist der Kläger auf Antrag des Beklagten zur Erstattung des von diesem auf Grund des Urteils Gezahlten oder Geleisteten zu verurteilen. Die Erstattungspflicht des Klägers bestimmt sich nach den Vorschriften über die Herausgabe einer ungerechtfertigten Bereicherung. Wird der Antrag gestellt, so ist der Anspruch auf Erstattung als zur Zeit der Zahlung oder Leistung rechtshängig geworden anzusehen; die mit der Rechtshängigkeit nach den Vorschriften des bürgerlichen Rechts verbundenen Wirkungen treten mit der Zahlung oder Leistung auch dann ein, wenn der Antrag nicht gestellt wird.
§ 718 Vorabentscheidung über vorläufige Vollstreckbarkeit
(1) In der Berufungsinstanz ist über die vorläufige Vollstreckbarkeit auf Antrag vorab zu verhandeln und zu entscheiden.
(2) Eine Anfechtung der in der Berufungsinstanz über die vorläufige Vollstreckbarkeit erlassenen Entscheidung findet nicht statt.
§ 719 Einstweilige Einstellung bei Rechtsmittel und Einspruch
(1) Wird gegen ein für vorläufig vollstreckbar erklärtes Urteil der Einspruch oder die Berufung eingelegt, so gelten die Vorschriften des § 707 entsprechend. Die Zwangsvollstreckung aus einem Versäumnisurteil darf nur gegen Sicherheitsleistung eingestellt werden, es sei denn, dass das Versäumnisurteil nicht in gesetzlicher Weise ergangen ist oder die säumige Partei glaubhaft macht, dass ihre Säumnis unverschuldet war.
(2) Wird Revision gegen ein für vorläufig vollstreckbar erklärtes Urteil eingelegt, so ordnet das Revisionsgericht auf Antrag an, dass die Zwangsvollstreckung einstweilen eingestellt wird, wenn die Vollstreckung dem Schuldner einen nicht zu ersetzenden Nachteil bringen würde und nicht ein überwiegendes Interesse des Gläubigers entgegensteht. Die Parteien haben die tatsächlichen Voraussetzungen glaubhaft zu machen.
(3) Die Entscheidung ergeht durch Beschluss.
§ 720 Hinterlegung bei Abwendung der Vollstreckung
Darf der Schuldner nach § 711 Satz 1, § 712 Abs. 1 Satz 1 die Vollstreckung durch Sicherheitsleistung oder Hinterlegung abwenden, so ist gepfändetes Geld oder der Erlös gepfändeter Gegenstände zu hinterlegen.
§ 720a Sicherungsvollstreckung
(1) Aus einem nur gegen Sicherheit vorläufig vollstreckbaren Urteil, durch das der Schuldner zur Leistung von Geld verurteilt worden ist, darf der Gläubiger ohne Sicherheitsleistung die Zwangsvollstreckung insoweit betreiben, als
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a) bewegliches Vermögen gepfändet wird, b) im Wege der Zwangsvollstreckung in das unbewegliche Vermögen eine Sicherungshypothek oder
Schiffshypothek eingetragen wird. Der Gläubiger kann sich aus dem belasteten Gegenstand nur nach Leistung der Sicherheit befriedigen.
(2) Für die Zwangsvollstreckung in das bewegliche Vermögen gilt § 930 Abs. 2, 3 entsprechend.
(3) Der Schuldner ist befugt, die Zwangsvollstreckung nach Absatz 1 durch Leistung einer Sicherheit in Höhe des Hauptanspruchs abzuwenden, wegen dessen der Gläubiger vollstrecken kann, wenn nicht der Gläubiger vorher die ihm obliegende Sicherheit geleistet hat.
§ 721 Räumungsfrist
(1) Wird auf Räumung von Wohnraum erkannt, so kann das Gericht auf Antrag oder von Amts wegen dem Schuldner eine den Umständen nach angemessene Räumungsfrist gewähren. Der Antrag ist vor dem Schluss der mündlichen Verhandlung zu stellen, auf die das Urteil ergeht. Ist der Antrag bei der Entscheidung übergangen, so gilt § 321; bis zur Entscheidung kann das Gericht auf Antrag die Zwangsvollstreckung wegen des Räumungsanspruchs einstweilen einstellen.
(2) Ist auf künftige Räumung erkannt und über eine Räumungsfrist noch nicht entschieden, so kann dem Schuldner eine den Umständen nach angemessene Räumungsfrist gewährt werden, wenn er spätestens zwei Wochen vor dem Tag, an dem nach dem Urteil zu räumen ist, einen Antrag stellt. §§ 233 bis 238 gelten sinngemäß.
(3) Die Räumungsfrist kann auf Antrag verlängert oder verkürzt werden. Der Antrag auf Verlängerung ist spätestens zwei Wochen vor Ablauf der Räumungsfrist zu stellen. §§ 233 bis 238 gelten sinngemäß.
(4) Über Anträge nach den Absätzen 2 oder 3 entscheidet das Gericht erster Instanz, solange die Sache in der Berufungsinstanz anhängig ist, das Berufungsgericht. Die Entscheidung ergeht durch Beschluss. Vor der Entscheidung ist der Gegner zu hören. Das Gericht ist befugt, die im § 732 Abs. 2 bezeichneten Anordnungen zu erlassen.
(5) Die Räumungsfrist darf insgesamt nicht mehr als ein Jahr betragen. Die Jahresfrist rechnet vom Tage der Rechtskraft des Urteils oder, wenn nach einem Urteil auf künftige Räumung an einem späteren Tage zu räumen ist, von diesem Tage an.
(6) Die sofortige Beschwerde findet statt 1. gegen Urteile, durch die auf Räumung von Wohnraum erkannt ist, wenn sich das Rechtsmittel lediglich
gegen die Versagung, Gewährung oder Bemessung einer Räumungsfrist richtet; 2. gegen Beschlüsse über Anträge nach den Absätzen 2 oder 3.
(7) Die Absätze 1 bis 6 gelten nicht für Mietverhältnisse über Wohnraum im Sinne des § 549 Abs. 2 Nr. 3 sowie in den Fällen des § 575 des Bürgerlichen Gesetzbuchs. Endet ein Mietverhältnis im Sinne des § 575 des Bürgerlichen Gesetzbuchs durch außerordentliche Kündigung, kann eine Räumungsfrist höchstens bis zum vertraglich bestimmten Zeitpunkt der Beendigung gewährt werden.
§ 722 Vollstreckbarkeit ausländischer Urteile
(1) Aus dem Urteil eines ausländischen Gerichts findet die Zwangsvollstreckung nur statt, wenn ihre Zulässigkeit durch ein Vollstreckungsurteil ausgesprochen ist.
(2) Für die Klage auf Erlass des Urteils ist das Amtsgericht oder Landgericht, bei dem der Schuldner seinen allgemeinen Gerichtsstand hat, und sonst das Amtsgericht oder Landgericht zuständig, bei dem nach § 23 gegen den Schuldner Klage erhoben werden kann.
§ 723 Vollstreckungsurteil
(1) Das Vollstreckungsurteil ist ohne Prüfung der Gesetzmäßigkeit der Entscheidung zu erlassen.
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(2) Das Vollstreckungsurteil ist erst zu erlassen, wenn das Urteil des ausländischen Gerichts nach dem für dieses Gericht geltenden Recht die Rechtskraft erlangt hat. Es ist nicht zu erlassen, wenn die Anerkennung des Urteils nach § 328 ausgeschlossen ist.
§ 724 Vollstreckbare Ausfertigung
(1) Die Zwangsvollstreckung wird auf Grund einer mit der Vollstreckungsklausel versehenen Ausfertigung des Urteils (vollstreckbare Ausfertigung) durchgeführt.
(2) Die vollstreckbare Ausfertigung wird von dem Urkundsbeamten der Geschäftsstelle des Gerichts des ersten Rechtszuges und, wenn der Rechtsstreit bei einem höheren Gericht anhängig ist, von dem Urkundsbeamten der Geschäftsstelle dieses Gerichts erteilt.
§ 725 Vollstreckungsklausel
Die Vollstreckungsklausel: "Vorstehende Ausfertigung wird dem usw. (Bezeichnung der Partei) zum Zwecke der Zwangsvollstreckung erteilt" ist der Ausfertigung des Urteils am Schluss beizufügen, von dem Urkundsbeamten der Geschäftsstelle zu unterschreiben und mit dem Gerichtssiegel zu versehen.
§ 726 Vollstreckbare Ausfertigung bei bedingten Leistungen
(1) Von Urteilen, deren Vollstreckung nach ihrem Inhalt von dem durch den Gläubiger zu beweisenden Eintritt einer anderen Tatsache als einer dem Gläubiger obliegenden Sicherheitsleistung abhängt, darf eine vollstreckbare Ausfertigung nur erteilt werden, wenn der Beweis durch öffentliche oder öffentlich beglaubigte Urkunden geführt wird.
(2) Hängt die Vollstreckung von einer Zug um Zug zu bewirkenden Leistung des Gläubigers an den Schuldner ab, so ist der Beweis, dass der Schuldner befriedigt oder im Verzug der Annahme ist, nur dann erforderlich, wenn die dem Schuldner obliegende Leistung in der Abgabe einer Willenserklärung besteht.
§ 727 Vollstreckbare Ausfertigung für und gegen Rechtsnachfolger
(1) Eine vollstreckbare Ausfertigung kann für den Rechtsnachfolger des in dem Urteil bezeichneten Gläubigers sowie gegen denjenigen Rechtsnachfolger des in dem Urteil bezeichneten Schuldners und denjenigen Besitzer der in Streit befangenen Sache, gegen die das Urteil nach § 325 wirksam ist, erteilt werden, sofern die Rechtsnachfolge oder das Besitzverhältnis bei dem Gericht offenkundig ist oder durch öffentliche oder öffentlich beglaubigte Urkunden nachgewiesen wird.
(2) Ist die Rechtsnachfolge oder das Besitzverhältnis bei dem Gericht offenkundig, so ist dies in der Vollstreckungsklausel zu erwähnen.
§ 728 Vollstreckbare Ausfertigung bei Nacherbe oder Testamentsvollstrecker
(1) Ist gegenüber dem Vorerben ein nach § 326 dem Nacherben gegenüber wirksames Urteil ergangen, so sind auf die Erteilung einer vollstreckbaren Ausfertigung für und gegen den Nacherben die Vorschriften des § 727 entsprechend anzuwenden.
(2) Das Gleiche gilt, wenn gegenüber einem Testamentsvollstrecker ein nach § 327 dem Erben gegenüber wirksames Urteil ergangen ist, für die Erteilung einer vollstreckbaren Ausfertigung für und gegen den Erben. Eine vollstreckbare Ausfertigung kann gegen den Erben erteilt werden, auch wenn die Verwaltung des Testamentsvollstreckers noch besteht.
§ 729 Vollstreckbare Ausfertigung gegen Vermögens- und Firmenübernehmer
(1) Hat jemand das Vermögen eines anderen durch Vertrag mit diesem nach der rechtskräftigen Feststellung einer Schuld des anderen übernommen, so sind auf die Erteilung einer vollstreckbaren Ausfertigung des Urteils gegen den Übernehmer die Vorschriften des § 727 entsprechend anzuwenden.
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(2) Das Gleiche gilt für die Erteilung einer vollstreckbaren Ausfertigung gegen denjenigen, der ein unter Lebenden erworbenes Handelsgeschäft unter der bisherigen Firma fortführt, in Ansehung der Verbindlichkeiten, für die er nach § 25 Abs. 1 Satz 1, Abs. 2 des Handelsgesetzbuchs haftet, sofern sie vor dem Erwerb des Geschäfts gegen den früheren Inhaber rechtskräftig festgestellt worden sind.
§ 730 Anhörung des Schuldners
In den Fällen des § 726 Abs. 1 und der §§ 727 bis 729 kann der Schuldner vor der Erteilung der vollstreckbaren Ausfertigung gehört werden.
§ 731 Klage auf Erteilung der Vollstreckungsklausel
Kann der nach dem § 726 Abs. 1 und den §§ 727 bis 729 erforderliche Nachweis durch öffentliche oder öffentlich beglaubigte Urkunden nicht geführt werden, so hat der Gläubiger bei dem Prozessgericht des ersten Rechtszuges aus dem Urteil auf Erteilung der Vollstreckungsklausel Klage zu erheben.
§ 732 Erinnerung gegen Erteilung der Vollstreckungsklausel
(1) Über Einwendungen des Schuldners, welche die Zulässigkeit der Vollstreckungsklausel betreffen, entscheidet das Gericht, von dessen Geschäftsstelle die Vollstreckungsklausel erteilt ist. Die Entscheidung ergeht durch Beschluss.
(2) Das Gericht kann vor der Entscheidung eine einstweilige Anordnung erlassen; es kann insbesondere anordnen, dass die Zwangsvollstreckung gegen oder ohne Sicherheitsleistung einstweilen einzustellen oder nur gegen Sicherheitsleistung fortzusetzen sei.
§ 733 Weitere vollstreckbare Ausfertigung
(1) Vor der Erteilung einer weiteren vollstreckbaren Ausfertigung kann der Schuldner gehört werden, sofern nicht die zuerst erteilte Ausfertigung zurückgegeben wird.
(2) Die Geschäftsstelle hat von der Erteilung der weiteren Ausfertigung den Gegner in Kenntnis zu setzen.
(3) Die weitere Ausfertigung ist als solche ausdrücklich zu bezeichnen.
§ 734 Vermerk über Ausfertigungserteilung auf der Urteilsurschrift
Vor der Aushändigung einer vollstreckbaren Ausfertigung ist auf der Urschrift des Urteils zu vermerken, für welche Partei und zu welcher Zeit die Ausfertigung erteilt ist. Werden die Prozessakten elektronisch geführt, so ist der Vermerk in einem gesonderten elektronischen Dokument festzuhalten. Das Dokument ist mit dem Urteil untrennbar zu verbinden.
§ 735 Zwangsvollstreckung gegen nicht rechtsfähigen Verein
Zur Zwangsvollstreckung in das Vermögen eines nicht rechtsfähigen Vereins genügt ein gegen den Verein ergangenes Urteil.
§ 736 Zwangsvollstreckung gegen BGB-Gesellschaft
Zur Zwangsvollstreckung in das Gesellschaftsvermögen einer nach § 705 des Bürgerlichen Gesetzbuchs eingegangenen Gesellschaft ist ein gegen alle Gesellschafter ergangenes Urteil erforderlich.
§ 737 Zwangsvollstreckung bei Vermögens- oder Erbschaftsnießbrauch
(1) Bei dem Nießbrauch an einem Vermögen ist wegen der vor der Bestellung des Nießbrauchs entstandenen Verbindlichkeiten des Bestellers die Zwangsvollstreckung in die dem Nießbrauch unterliegenden Gegenstände ohne Rücksicht auf den Nießbrauch zulässig, wenn der Besteller zu der Leistung und der Nießbraucher zur Duldung der Zwangsvollstreckung verurteilt ist.
(2) Das Gleiche gilt bei dem Nießbrauch an einer Erbschaft für die Nachlassverbindlichkeiten.
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§ 738 Vollstreckbare Ausfertigung gegen Nießbraucher
(1) Ist die Bestellung des Nießbrauchs an einem Vermögen nach der rechtskräftigen Feststellung einer Schuld des Bestellers erfolgt, so sind auf die Erteilung einer in Ansehung der dem Nießbrauch unterliegenden Gegenstände vollstreckbaren Ausfertigung des Urteils gegen den Nießbraucher die Vorschriften der §§ 727, 730 bis 732 entsprechend anzuwenden.
(2) Das Gleiche gilt bei dem Nießbrauch an einer Erbschaft für die Erteilung einer vollstreckbaren Ausfertigung des gegen den Erblasser ergangenen Urteils.
§ 739 Gewahrsamsvermutung bei Zwangsvollstreckung gegen Ehegatten und Lebenspartner
(1) Wird zugunsten der Gläubiger eines Ehemannes oder der Gläubiger einer Ehefrau gemäß § 1362 des Bürgerlichen Gesetzbuchs vermutet, dass der Schuldner Eigentümer beweglicher Sachen ist, so gilt, unbeschadet der Rechte Dritter, für die Durchführung der Zwangsvollstreckung nur der Schuldner als Gewahrsamsinhaber und Besitzer.
(2) Absatz 1 gilt entsprechend für die Vermutung des § 8 Abs. 1 des Lebenspartnerschaftsgesetzes zugunsten der Gläubiger eines der Lebenspartner.
§ 740 Zwangsvollstreckung in das Gesamtgut
(1) Leben die Ehegatten in Gütergemeinschaft und verwaltet einer von ihnen das Gesamtgut allein, so ist zur Zwangsvollstreckung in das Gesamtgut ein Urteil gegen diesen Ehegatten erforderlich und genügend.
(2) Verwalten die Ehegatten das Gesamtgut gemeinschaftlich, so ist die Zwangsvollstreckung in das Gesamtgut nur zulässig, wenn beide Ehegatten zur Leistung verurteilt sind.
§ 741 Zwangsvollstreckung in das Gesamtgut bei Erwerbsgeschäft
Betreibt ein Ehegatte, der in Gütergemeinschaft lebt und das Gesamtgut nicht oder nicht allein verwaltet, selbständig ein Erwerbsgeschäft, so ist zur Zwangsvollstreckung in das Gesamtgut ein gegen ihn ergangenes Urteil genügend, es sei denn, dass zur Zeit des Eintritts der Rechtshängigkeit der Einspruch des anderen Ehegatten gegen den Betrieb des Erwerbsgeschäfts oder der Widerruf seiner Einwilligung zu dem Betrieb im Güterrechtsregister eingetragen war.
§ 742 Vollstreckbare Ausfertigung bei Gütergemeinschaft während des Rechtsstreits
Ist die Gütergemeinschaft erst eingetreten, nachdem ein von einem Ehegatten oder gegen einen Ehegatten geführter Rechtsstreit rechtshängig geworden ist, und verwaltet dieser Ehegatte das Gesamtgut nicht oder nicht allein, so sind auf die Erteilung einer in Ansehung des Gesamtgutes vollstreckbaren Ausfertigung des Urteils für oder gegen den anderen Ehegatten die Vorschriften der §§ 727, 730 bis 732 entsprechend anzuwenden.
§ 743 Beendete Gütergemeinschaft
Nach der Beendigung der Gütergemeinschaft ist vor der Auseinandersetzung die Zwangsvollstreckung in das Gesamtgut nur zulässig, wenn beide Ehegatten zu der Leistung oder der eine Ehegatte zu der Leistung und der andere zur Duldung der Zwangsvollstreckung verurteilt sind.
§ 744 Vollstreckbare Ausfertigung bei beendeter Gütergemeinschaft
Ist die Beendigung der Gütergemeinschaft nach der Beendigung eines Rechtsstreits des Ehegatten eingetreten, der das Gesamtgut allein verwaltet, so sind auf die Erteilung einer in Ansehung des Gesamtgutes vollstreckbaren Ausfertigung des Urteils gegen den anderen Ehegatten die Vorschriften der §§ 727, 730 bis 732 entsprechend anzuwenden.
§ 744a Zwangsvollstreckung bei Eigentums- und Vermögensgemeinschaft
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Leben die Ehegatten gemäß Artikel 234 § 4 Abs. 2 des Einführungsgesetzes zum Bürgerlichen Gesetzbuch im Güterstand der Eigentums- und Vermögensgemeinschaft, sind für die Zwangsvollstreckung in Gegenstände des gemeinschaftlichen Eigentums und Vermögens die §§ 740 bis 744, 774 und 860 entsprechend anzuwenden.
§ 745 Zwangsvollstreckung bei fortgesetzter Gütergemeinschaft
(1) Im Falle der fortgesetzten Gütergemeinschaft ist zur Zwangsvollstreckung in das Gesamtgut ein gegen den überlebenden Ehegatten ergangenes Urteil erforderlich und genügend.
(2) Nach der Beendigung der fortgesetzten Gütergemeinschaft gelten die Vorschriften der §§ 743, 744 mit der Maßgabe, dass an die Stelle des Ehegatten, der das Gesamtgut allein verwaltet, der überlebende Ehegatte, an die Stelle des anderen Ehegatten die anteilsberechtigten Abkömmlinge treten.
§ 746
(weggefallen)
§ 747 Zwangsvollstreckung in ungeteilten Nachlass
Zur Zwangsvollstreckung in einen Nachlass ist, wenn mehrere Erben vorhanden sind, bis zur Teilung ein gegen alle Erben ergangenes Urteil erforderlich.
§ 748 Zwangsvollstreckung bei Testamentsvollstrecker
(1) Unterliegt ein Nachlass der Verwaltung eines Testamentsvollstreckers, so ist zur Zwangsvollstreckung in den Nachlass ein gegen den Testamentsvollstrecker ergangenes Urteil erforderlich und genügend.
(2) Steht dem Testamentsvollstrecker nur die Verwaltung einzelner Nachlassgegenstände zu, so ist die Zwangsvollstreckung in diese Gegenstände nur zulässig, wenn der Erbe zu der Leistung, der Testamentsvollstrecker zur Duldung der Zwangsvollstreckung verurteilt ist.
(3) Zur Zwangsvollstreckung wegen eines Pflichtteilanspruchs ist im Falle des Absatzes 1 wie im Falle des Absatzes 2 ein sowohl gegen den Erben als gegen den Testamentsvollstrecker ergangenes Urteil erforderlich.
§ 749 Vollstreckbare Ausfertigung für und gegen Testamentsvollstrecker
Auf die Erteilung einer vollstreckbaren Ausfertigung eines für oder gegen den Erblasser ergangenen Urteils für oder gegen den Testamentsvollstrecker sind die Vorschriften der §§ 727, 730 bis 732 entsprechend anzuwenden. Auf Grund einer solchen Ausfertigung ist die Zwangsvollstreckung nur in die der Verwaltung des Testamentsvollstreckers unterliegenden Nachlassgegenstände zulässig.
§ 750 Voraussetzungen der Zwangsvollstreckung
(1) Die Zwangsvollstreckung darf nur beginnen, wenn die Personen, für und gegen die sie stattfinden soll, in dem Urteil oder in der ihm beigefügten Vollstreckungsklausel namentlich bezeichnet sind und das Urteil bereits zugestellt ist oder gleichzeitig zugestellt wird. Eine Zustellung durch den Gläubiger genügt; in diesem Fall braucht die Ausfertigung des Urteils Tatbestand und Entscheidungsgründe nicht zu enthalten.
(2) Handelt es sich um die Vollstreckung eines Urteils, dessen vollstreckbare Ausfertigung nach § 726 Abs. 1 erteilt worden ist, oder soll ein Urteil, das nach den §§ 727 bis 729, 738, 742, 744, dem § 745 Abs. 2 und dem § 749 für oder gegen eine der dort bezeichneten Personen wirksam ist, für oder gegen eine dieser Personen vollstreckt werden, so muss außer dem zu vollstreckenden Urteil auch die ihm beigefügte Vollstreckungsklausel und, sofern die Vollstreckungsklausel auf Grund öffentlicher oder öffentlich beglaubigter Urkunden erteilt ist, auch eine Abschrift dieser Urkunden vor Beginn der Zwangsvollstreckung zugestellt sein oder gleichzeitig mit ihrem Beginn zugestellt werden.
(3) Eine Zwangsvollstreckung nach § 720a darf nur beginnen, wenn das Urteil und die Vollstreckungsklausel mindestens zwei Wochen vorher zugestellt sind.
§ 751 Bedingungen für Vollstreckungsbeginn
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(1) Ist die Geltendmachung des Anspruchs von dem Eintritt eines Kalendertages abhängig, so darf die Zwangsvollstreckung nur beginnen, wenn der Kalendertag abgelaufen ist.
(2) Hängt die Vollstreckung von einer dem Gläubiger obliegenden Sicherheitsleistung ab, so darf mit der Zwangsvollstreckung nur begonnen oder sie nur fortgesetzt werden, wenn die Sicherheitsleistung durch eine öffentliche oder öffentlich beglaubigte Urkunde nachgewiesen und eine Abschrift dieser Urkunde bereits zugestellt ist oder gleichzeitig zugestellt wird.
§ 752 Sicherheitsleistung bei Teilvollstreckung
Vollstreckt der Gläubiger im Fall des § 751 Abs. 2 nur wegen eines Teilbetrages, so bemisst sich die Höhe der Sicherheitsleistung nach dem Verhältnis des Teilbetrages zum Gesamtbetrag. Darf der Schuldner in den Fällen des § 709 die Vollstreckung gemäß § 712 Abs. 1 Satz 1 abwenden, so gilt für ihn Satz 1 entsprechend.
§ 753 Vollstreckung durch Gerichtsvollzieher
(1) Die Zwangsvollstreckung wird, soweit sie nicht den Gerichten zugewiesen ist, durch Gerichtsvollzieher durchgeführt, die sie im Auftrag des Gläubigers zu bewirken haben.
(2) Der Gläubiger kann wegen Erteilung des Auftrags zur Zwangsvollstreckung die Mitwirkung der Geschäftsstelle in Anspruch nehmen. Der von der Geschäftsstelle beauftragte Gerichtsvollzieher gilt als von dem Gläubiger beauftragt.
(3) Das Bundesministerium der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates verbindliche Formulare für den Auftrag nach Absatz 2 einzuführen. Für elektronisch eingereichte Aufträge können besondere Formulare vorgesehen werden.
§ 754 Vollstreckungsauftrag und vollstreckbare Ausfertigung
(1) Durch den Vollstreckungsauftrag und die Übergabe der vollstreckbaren Ausfertigung wird der Gerichtsvollzieher ermächtigt, Leistungen des Schuldners entgegenzunehmen und diese zu quittieren sowie mit Wirkung für den Gläubiger Zahlungsvereinbarungen nach Maßgabe des § 802b zu treffen.
(2) Dem Schuldner und Dritten gegenüber wird der Gerichtsvollzieher zur Vornahme der Zwangsvollstreckung und der in Absatz 1 bezeichneten Handlungen durch den Besitz der vollstreckbaren Ausfertigung ermächtigt. Der Mangel oder die Beschränkung des Auftrags kann diesen Personen gegenüber von dem Gläubiger nicht geltend gemacht werden.
§ 755 Ermittlung des Aufenthaltsorts des Schuldners
(1) Ist der Wohnsitz oder gewöhnliche Aufenthaltsort des Schuldners nicht bekannt, darf der Gerichtsvollzieher auf Grund des Vollstreckungsauftrags und der Übergabe der vollstreckbaren Ausfertigung zur Ermittlung des Aufenthaltsorts des Schuldners bei der Meldebehörde die gegenwärtigen Anschriften sowie Angaben zur Haupt- und Nebenwohnung des Schuldners erheben.
(2) Soweit der Aufenthaltsort des Schuldners nach Absatz 1 nicht zu ermitteln ist, darf der Gerichtsvollzieher 1. zunächst beim Ausländerzentralregister die Angaben zur aktenführenden Ausländerbehörde sowie
zum Zuzug oder Fortzug des Schuldners und anschließend bei der gemäß der Auskunft aus dem Ausländerzentralregister aktenführenden Ausländerbehörde den Aufenthaltsort des Schuldners,
2. bei den Trägern der gesetzlichen Rentenversicherung die dort bekannte derzeitige Anschrift, den derzeitigen oder zukünftigen Aufenthaltsort des Schuldners sowie
3. bei dem Kraftfahrt-Bundesamt die Halterdaten nach § 33 Abs. 1 Satz 1 Nr. 2 des Straßenverkehrsgesetzes erheben. Ist der Schuldner Unionsbürger, darf der Gerichtsvollzieher die Daten nach Satz 1 Nummer 1 nur erheben, wenn ihm tatsächliche Anhaltspunkte für die Vermutung der Feststellung des Nichtbestehens oder des Verlusts des Freizügigkeitsrechts vorliegen. Eine Übermittlung der Daten nach Satz 1 Nummer 1 an den Gerichtsvollzieher ist ausgeschlossen, wenn der Schuldner Unionsbürger ist, für den eine Feststellung des Nichtbestehens oder des Verlusts des Freizügigkeitsrechts nicht vorliegt.Die Daten nach Satz 1 Nr. 2 und 3 darf der Gerichtsvollzieher nur erheben, wenn die zu vollstreckenden Ansprüche mindestens 500 Euro betragen;
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Kosten der Zwangsvollstreckung und Nebenforderungen sind bei der Berechnung nur zu berücksichtigen, wenn sie allein Gegenstand des Vollstreckungsauftrags sind.
§ 756 Zwangsvollstreckung bei Leistung Zug um Zug
(1) Hängt die Vollstreckung von einer Zug um Zug zu bewirkenden Leistung des Gläubigers an den Schuldner ab, so darf der Gerichtsvollzieher die Zwangsvollstreckung nicht beginnen, bevor er dem Schuldner die diesem gebührende Leistung in einer den Verzug der Annahme begründenden Weise angeboten hat, sofern nicht der Beweis, dass der Schuldner befriedigt oder im Verzug der Annahme ist, durch öffentliche oder öffentlich beglaubigte Urkunden geführt wird und eine Abschrift dieser Urkunden bereits zugestellt ist oder gleichzeitig zugestellt wird.
(2) Der Gerichtsvollzieher darf mit der Zwangsvollstreckung beginnen, wenn der Schuldner auf das wörtliche Angebot des Gerichtsvollziehers erklärt, dass er die Leistung nicht annehmen werde.
§ 757 Übergabe des Titels und Quittung
(1) Der Gerichtsvollzieher hat nach Empfang der Leistungen dem Schuldner die vollstreckbare Ausfertigung nebst einer Quittung auszuliefern, bei teilweiser Leistung diese auf der vollstreckbaren Ausfertigung zu vermerken und dem Schuldner Quittung zu erteilen.
(2) Das Recht des Schuldners, nachträglich eine Quittung des Gläubigers selbst zu fordern, wird durch diese Vorschriften nicht berührt.
§ 758 Durchsuchung; Gewaltanwendung
(1) Der Gerichtsvollzieher ist befugt, die Wohnung und die Behältnisse des Schuldners zu durchsuchen, soweit der Zweck der Vollstreckung dies erfordert.
(2) Er ist befugt, die verschlossenen Haustüren, Zimmertüren und Behältnisse öffnen zu lassen.
(3) Er ist, wenn er Widerstand findet, zur Anwendung von Gewalt befugt und kann zu diesem Zweck die Unterstützung der polizeilichen Vollzugsorgane nachsuchen.
§ 758a Richterliche Durchsuchungsanordnung; Vollstreckung zur Unzeit
(1) Die Wohnung des Schuldners darf ohne dessen Einwilligung nur auf Grund einer Anordnung des Richters bei dem Amtsgericht durchsucht werden, in dessen Bezirk die Durchsuchung erfolgen soll. Dies gilt nicht, wenn die Einholung der Anordnung den Erfolg der Durchsuchung gefährden würde.
(2) Auf die Vollstreckung eines Titels auf Räumung oder Herausgabe von Räumen und auf die Vollstreckung eines Haftbefehls nach § 802g ist Absatz 1 nicht anzuwenden.
(3) Willigt der Schuldner in die Durchsuchung ein oder ist eine Anordnung gegen ihn nach Absatz 1 Satz 1 ergangen oder nach Absatz 1 Satz 2 entbehrlich, so haben Personen, die Mitgewahrsam an der Wohnung des Schuldners haben, die Durchsuchung zu dulden. Unbillige Härten gegenüber Mitgewahrsamsinhabern sind zu vermeiden.
(4) Der Gerichtsvollzieher nimmt eine Vollstreckungshandlung zur Nachtzeit und an Sonn- und Feiertagen nicht vor, wenn dies für den Schuldner und die Mitgewahrsamsinhaber eine unbillige Härte darstellt oder der zu erwartende Erfolg in einem Missverhältnis zu dem Eingriff steht, in Wohnungen nur auf Grund einer besonderen Anordnung des Richters bei dem Amtsgericht. Die Nachtzeit umfasst die Stunden von 21 bis 6 Uhr.
(5) Die Anordnung nach Absatz 1 ist bei der Zwangsvollstreckung vorzuzeigen.
(6) Das Bundesministerium der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates Formulare für den Antrag auf Erlass einer richterlichen Durchsuchungsanordnung nach Absatz 1 einzuführen. Soweit nach Satz 1 Formulare eingeführt sind, muss sich der Antragsteller ihrer bedienen. Für Verfahren bei Gerichten, die die Verfahren elektronisch bearbeiten, und für Verfahren bei Gerichten, die die Verfahren nicht elektronisch bearbeiten, können unterschiedliche Formulare eingeführt werden.
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§ 759 Zuziehung von Zeugen
Wird bei einer Vollstreckungshandlung Widerstand geleistet oder ist bei einer in der Wohnung des Schuldners vorzunehmenden Vollstreckungshandlung weder der Schuldner noch ein erwachsener Familienangehöriger, eine in der Familie beschäftigte Person oder ein erwachsener ständiger Mitbewohner anwesend, so hat der Gerichtsvollzieher zwei erwachsene Personen oder einen Gemeinde- oder Polizeibeamten als Zeugen zuzuziehen.
§ 760 Akteneinsicht; Aktenabschrift
Jeder Person, die bei dem Vollstreckungsverfahren beteiligt ist, muss auf Begehren Einsicht der Akten des Gerichtsvollziehers gestattet und Abschrift einzelner Aktenstücke erteilt werden. Werden die Akten des Gerichtsvollziehers elektronisch geführt, erfolgt die Gewährung von Akteneinsicht durch Erteilung von Ausdrucken, durch Übermittlung von elektronischen Dokumenten oder durch Wiedergabe auf einem Bildschirm; dies gilt auch für die nach § 885a Absatz 2 Satz 2 elektronisch gespeicherten Dateien.
§ 761
(weggefallen)
§ 762 Protokoll über Vollstreckungshandlungen
(1) Der Gerichtsvollzieher hat über jede Vollstreckungshandlung ein Protokoll aufzunehmen.
(2) Das Protokoll muss enthalten: 1. Ort und Zeit der Aufnahme; 2. den Gegenstand der Vollstreckungshandlung unter kurzer Erwähnung der wesentlichen Vorgänge; 3. die Namen der Personen, mit denen verhandelt ist; 4. die Unterschrift dieser Personen und den Vermerk, dass die Unterzeichnung nach Vorlesung oder Vorlegung
zur Durchsicht und nach Genehmigung erfolgt sei; 5. die Unterschrift des Gerichtsvollziehers.
(3) Hat einem der unter Nummer 4 bezeichneten Erfordernisse nicht genügt werden können, so ist der Grund anzugeben.
§ 763 Aufforderungen und Mitteilungen
(1) Die Aufforderungen und sonstigen Mitteilungen, die zu den Vollstreckungshandlungen gehören, sind von dem Gerichtsvollzieher mündlich zu erlassen und vollständig in das Protokoll aufzunehmen.
(2) Kann dies mündlich nicht ausgeführt werden, so hat der Gerichtsvollzieher eine Abschrift des Protokolls zuzustellen oder durch die Post zu übersenden. Es muss im Protokoll vermerkt werden, dass diese Vorschrift befolgt ist. Eine öffentliche Zustellung findet nicht statt.
§ 764 Vollstreckungsgericht
(1) Die den Gerichten zugewiesene Anordnung von Vollstreckungshandlungen und Mitwirkung bei solchen gehört zur Zuständigkeit der Amtsgerichte als Vollstreckungsgerichte.
(2) Als Vollstreckungsgericht ist, sofern nicht das Gesetz ein anderes Amtsgericht bezeichnet, das Amtsgericht anzusehen, in dessen Bezirk das Vollstreckungsverfahren stattfinden soll oder stattgefunden hat.
(3) Die Entscheidungen des Vollstreckungsgerichts ergehen durch Beschluss.
§ 765 Vollstreckungsgerichtliche Anordnungen bei Leistung Zug um Zug
Hängt die Vollstreckung von einer Zug um Zug zu bewirkenden Leistung des Gläubigers an den Schuldner ab, so darf das Vollstreckungsgericht eine Vollstreckungsmaßregel nur anordnen, wenn
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1. der Beweis, dass der Schuldner befriedigt oder im Verzug der Annahme ist, durch öffentliche oder öffentlich beglaubigte Urkunden geführt wird und eine Abschrift dieser Urkunden bereits zugestellt ist; der Zustellung bedarf es nicht, wenn bereits der Gerichtsvollzieher die Zwangsvollstreckung nach § 756 Abs. 1 begonnen hatte und der Beweis durch das Protokoll des Gerichtsvollziehers geführt wird; oder
2. der Gerichtsvollzieher eine Vollstreckungsmaßnahme nach § 756 Abs. 2 durchgeführt hat und diese durch das Protokoll des Gerichtsvollziehers nachgewiesen ist.
§ 765a Vollstreckungsschutz
(1) Auf Antrag des Schuldners kann das Vollstreckungsgericht eine Maßnahme der Zwangsvollstreckung ganz oder teilweise aufheben, untersagen oder einstweilen einstellen, wenn die Maßnahme unter voller Würdigung des Schutzbedürfnisses des Gläubigers wegen ganz besonderer Umstände eine Härte bedeutet, die mit den guten Sitten nicht vereinbar ist. Es ist befugt, die in § 732 Abs. 2 bezeichneten Anordnungen zu erlassen. Betrifft die Maßnahme ein Tier, so hat das Vollstreckungsgericht bei der von ihm vorzunehmenden Abwägung die Verantwortung des Menschen für das Tier zu berücksichtigen.
(2) Eine Maßnahme zur Erwirkung der Herausgabe von Sachen kann der Gerichtsvollzieher bis zur Entscheidung des Vollstreckungsgerichts, jedoch nicht länger als eine Woche, aufschieben, wenn ihm die Voraussetzungen des Absatzes 1 Satz 1 glaubhaft gemacht werden und dem Schuldner die rechtzeitige Anrufung des Vollstreckungsgerichts nicht möglich war.
(3) In Räumungssachen ist der Antrag nach Absatz 1 spätestens zwei Wochen vor dem festgesetzten Räumungstermin zu stellen, es sei denn, dass die Gründe, auf denen der Antrag beruht, erst nach diesem Zeitpunkt entstanden sind oder der Schuldner ohne sein Verschulden an einer rechtzeitigen Antragstellung gehindert war.
(4) Das Vollstreckungsgericht hebt seinen Beschluss auf Antrag auf oder ändert ihn, wenn dies mit Rücksicht auf eine Änderung der Sachlage geboten ist.
(5) Die Aufhebung von Vollstreckungsmaßregeln erfolgt in den Fällen des Absatzes 1 Satz 1 und des Absatzes 4 erst nach Rechtskraft des Beschlusses.
§ 766 Erinnerung gegen Art und Weise der Zwangsvollstreckung
(1) Über Anträge, Einwendungen und Erinnerungen, welche die Art und Weise der Zwangsvollstreckung oder das vom Gerichtsvollzieher bei ihr zu beobachtende Verfahren betreffen, entscheidet das Vollstreckungsgericht. Es ist befugt, die im § 732 Abs. 2 bezeichneten Anordnungen zu erlassen.
(2) Dem Vollstreckungsgericht steht auch die Entscheidung zu, wenn ein Gerichtsvollzieher sich weigert, einen Vollstreckungsauftrag zu übernehmen oder eine Vollstreckungshandlung dem Auftrag gemäß auszuführen, oder wenn wegen der von dem Gerichtsvollzieher in Ansatz gebrachten Kosten Erinnerungen erhoben werden.
§ 767 Vollstreckungsabwehrklage
(1) Einwendungen, die den durch das Urteil festgestellten Anspruch selbst betreffen, sind von dem Schuldner im Wege der Klage bei dem Prozessgericht des ersten Rechtszuges geltend zu machen.
(2) Sie sind nur insoweit zulässig, als die Gründe, auf denen sie beruhen, erst nach dem Schluss der mündlichen Verhandlung, in der Einwendungen nach den Vorschriften dieses Gesetzes spätestens hätten geltend gemacht werden müssen, entstanden sind und durch Einspruch nicht mehr geltend gemacht werden können.
(3) Der Schuldner muss in der von ihm zu erhebenden Klage alle Einwendungen geltend machen, die er zur Zeit der Erhebung der Klage geltend zu machen imstande war.
§ 768 Klage gegen Vollstreckungsklausel
Die Vorschriften des § 767 Abs. 1, 3 gelten entsprechend, wenn in den Fällen des § 726 Abs. 1, der §§ 727 bis 729, 738, 742, 744, des § 745 Abs. 2 und des § 749 der Schuldner den bei der Erteilung der Vollstreckungsklausel als bewiesen angenommenen Eintritt der Voraussetzung für die Erteilung der Vollstreckungsklausel bestreitet, unbeschadet der Befugnis des Schuldners, in diesen Fällen Einwendungen gegen die Zulässigkeit der Vollstreckungsklausel nach § 732 zu erheben.
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§ 769 Einstweilige Anordnungen
(1) Das Prozessgericht kann auf Antrag anordnen, dass bis zum Erlass des Urteils über die in den §§ 767, 768 bezeichneten Einwendungen die Zwangsvollstreckung gegen oder ohne Sicherheitsleistung eingestellt oder nur gegen Sicherheitsleistung fortgesetzt werde und dass Vollstreckungsmaßregeln gegen Sicherheitsleistung aufzuheben seien. Es setzt eine Sicherheitsleistung für die Einstellung der Zwangsvollstreckung nicht fest, wenn der Schuldner zur Sicherheitsleistung nicht in der Lage ist und die Rechtsverfolgung durch ihn hinreichende Aussicht auf Erfolg bietet. Die tatsächlichen Behauptungen, die den Antrag begründen, sind glaubhaft zu machen.
(2) In dringenden Fällen kann das Vollstreckungsgericht eine solche Anordnung erlassen, unter Bestimmung einer Frist, innerhalb der die Entscheidung des Prozessgerichts beizubringen sei. Nach fruchtlosem Ablauf der Frist wird die Zwangsvollstreckung fortgesetzt.
(3) Die Entscheidung über diese Anträge ergeht durch Beschluss.
(4) Im Fall der Anhängigkeit einer auf Herabsetzung gerichteten Abänderungsklage gelten die Absätze 1 bis 3 entsprechend.
§ 770 Einstweilige Anordnungen im Urteil
Das Prozessgericht kann in dem Urteil, durch das über die Einwendungen entschieden wird, die in dem vorstehenden Paragraphen bezeichneten Anordnungen erlassen oder die bereits erlassenen Anordnungen aufheben, abändern oder bestätigen. Für die Anfechtung einer solchen Entscheidung gelten die Vorschriften des § 718 entsprechend.
§ 771 Drittwiderspruchsklage
(1) Behauptet ein Dritter, dass ihm an dem Gegenstand der Zwangsvollstreckung ein die Veräußerung hinderndes Recht zustehe, so ist der Widerspruch gegen die Zwangsvollstreckung im Wege der Klage bei dem Gericht geltend zu machen, in dessen Bezirk die Zwangsvollstreckung erfolgt.
(2) Wird die Klage gegen den Gläubiger und den Schuldner gerichtet, so sind diese als Streitgenossen anzusehen.
(3) Auf die Einstellung der Zwangsvollstreckung und die Aufhebung der bereits getroffenen Vollstreckungsmaßregeln sind die Vorschriften der §§ 769, 770 entsprechend anzuwenden. Die Aufhebung einer Vollstreckungsmaßregel ist auch ohne Sicherheitsleistung zulässig.
§ 772 Drittwiderspruchsklage bei Veräußerungsverbot
Solange ein Veräußerungsverbot der in den §§ 135, 136 des Bürgerlichen Gesetzbuchs bezeichneten Art besteht, soll der Gegenstand, auf den es sich bezieht, wegen eines persönlichen Anspruchs oder auf Grund eines infolge des Verbots unwirksamen Rechts nicht im Wege der Zwangsvollstreckung veräußert oder überwiesen werden. Auf Grund des Veräußerungsverbots kann nach Maßgabe des § 771 Widerspruch erhoben werden.
§ 773 Drittwiderspruchsklage des Nacherben
Ein Gegenstand, der zu einer Vorerbschaft gehört, soll nicht im Wege der Zwangsvollstreckung veräußert oder überwiesen werden, wenn die Veräußerung oder die Überweisung im Falle des Eintritts der Nacherbfolge nach § 2115 des Bürgerlichen Gesetzbuchs dem Nacherben gegenüber unwirksam ist. Der Nacherbe kann nach Maßgabe des § 771 Widerspruch erheben.
§ 774 Drittwiderspruchsklage des Ehegatten
Findet nach § 741 die Zwangsvollstreckung in das Gesamtgut statt, so kann ein Ehegatte nach Maßgabe des § 771 Widerspruch erheben, wenn das gegen den anderen Ehegatten ergangene Urteil in Ansehung des Gesamtgutes ihm gegenüber unwirksam ist.
§ 775 Einstellung oder Beschränkung der Zwangsvollstreckung
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Die Zwangsvollstreckung ist einzustellen oder zu beschränken: 1. wenn die Ausfertigung einer vollstreckbaren Entscheidung vorgelegt wird, aus der sich ergibt, dass das zu
vollstreckende Urteil oder seine vorläufige Vollstreckbarkeit aufgehoben oder dass die Zwangsvollstreckung für unzulässig erklärt oder ihre Einstellung angeordnet ist;
2. wenn die Ausfertigung einer gerichtlichen Entscheidung vorgelegt wird, aus der sich ergibt, dass die einstweilige Einstellung der Vollstreckung oder einer Vollstreckungsmaßregel angeordnet ist oder dass die Vollstreckung nur gegen Sicherheitsleistung fortgesetzt werden darf;
3. wenn eine öffentliche Urkunde vorgelegt wird, aus der sich ergibt, dass die zur Abwendung der Vollstreckung erforderliche Sicherheitsleistung oder Hinterlegung erfolgt ist;
4. wenn eine öffentliche Urkunde oder eine von dem Gläubiger ausgestellte Privaturkunde vorgelegt wird, aus der sich ergibt, dass der Gläubiger nach Erlass des zu vollstreckenden Urteils befriedigt ist oder Stundung bewilligt hat;
5. wenn der Einzahlungs- oder Überweisungsnachweis einer Bank oder Sparkasse vorgelegt wird, aus dem sich ergibt, dass der zur Befriedigung des Gläubigers erforderliche Betrag zur Auszahlung an den Gläubiger oder auf dessen Konto eingezahlt oder überwiesen worden ist.
§ 776 Aufhebung von Vollstreckungsmaßregeln
In den Fällen des § 775 Nr. 1, 3 sind zugleich die bereits getroffenen Vollstreckungsmaßregeln aufzuheben. In den Fällen der Nummern 4, 5 bleiben diese Maßregeln einstweilen bestehen; dasselbe gilt in den Fällen der Nummer 2, sofern nicht durch die Entscheidung auch die Aufhebung der bisherigen Vollstreckungshandlungen angeordnet ist.
§ 777 Erinnerung bei genügender Sicherung des Gläubigers
Hat der Gläubiger eine bewegliche Sache des Schuldners im Besitz, in Ansehung deren ihm ein Pfandrecht oder ein Zurückbehaltungsrecht für seine Forderung zusteht, so kann der Schuldner der Zwangsvollstreckung in sein übriges Vermögen nach § 766 widersprechen, soweit die Forderung durch den Wert der Sache gedeckt ist. Steht dem Gläubiger ein solches Recht in Ansehung der Sache auch für eine andere Forderung zu, so ist der Widerspruch nur zulässig, wenn auch diese Forderung durch den Wert der Sache gedeckt ist.
§ 778 Zwangsvollstreckung vor Erbschaftsannahme
(1) Solange der Erbe die Erbschaft nicht angenommen hat, ist eine Zwangsvollstreckung wegen eines Anspruchs, der sich gegen den Nachlass richtet, nur in den Nachlass zulässig.
(2) Wegen eigener Verbindlichkeiten des Erben ist eine Zwangsvollstreckung in den Nachlass vor der Annahme der Erbschaft nicht zulässig.
§ 779 Fortsetzung der Zwangsvollstreckung nach dem Tod des Schuldners
(1) Eine Zwangsvollstreckung, die zur Zeit des Todes des Schuldners gegen ihn bereits begonnen hatte, wird in seinen Nachlass fortgesetzt.
(2) Ist bei einer Vollstreckungshandlung die Zuziehung des Schuldners nötig, so hat, wenn die Erbschaft noch nicht angenommen oder wenn der Erbe unbekannt oder es ungewiss ist, ob er die Erbschaft angenommen hat, das Vollstreckungsgericht auf Antrag des Gläubigers dem Erben einen einstweiligen besonderen Vertreter zu bestellen. Die Bestellung hat zu unterbleiben, wenn ein Nachlasspfleger bestellt ist oder wenn die Verwaltung des Nachlasses einem Testamentsvollstrecker zusteht.
§ 780 Vorbehalt der beschränkten Erbenhaftung
(1) Der als Erbe des Schuldners verurteilte Beklagte kann die Beschränkung seiner Haftung nur geltend machen, wenn sie ihm im Urteil vorbehalten ist.
(2) Der Vorbehalt ist nicht erforderlich, wenn der Fiskus als gesetzlicher Erbe verurteilt wird oder wenn das Urteil über eine Nachlassverbindlichkeit gegen einen Nachlassverwalter oder einen anderen Nachlasspfleger oder gegen einen Testamentsvollstrecker, dem die Verwaltung des Nachlasses zusteht, erlassen wird.
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§ 781 Beschränkte Erbenhaftung in der Zwangsvollstreckung
Bei der Zwangsvollstreckung gegen den Erben des Schuldners bleibt die Beschränkung der Haftung unberücksichtigt, bis auf Grund derselben gegen die Zwangsvollstreckung von dem Erben Einwendungen erhoben werden.
§ 782 Einreden des Erben gegen Nachlassgläubiger
Der Erbe kann auf Grund der ihm nach den §§ 2014, 2015 des Bürgerlichen Gesetzbuchs zustehenden Einreden nur verlangen, dass die Zwangsvollstreckung für die Dauer der dort bestimmten Fristen auf solche Maßregeln beschränkt wird, die zur Vollziehung eines Arrestes zulässig sind. Wird vor dem Ablauf der Frist die Eröffnung des Nachlassinsolvenzverfahrens beantragt, so ist auf Antrag die Beschränkung der Zwangsvollstreckung auch nach dem Ablauf der Frist aufrechtzuerhalten, bis über die Eröffnung des Insolvenzverfahrens rechtskräftig entschieden ist.
§ 783 Einreden des Erben gegen persönliche Gläubiger
In Ansehung der Nachlassgegenstände kann der Erbe die Beschränkung der Zwangsvollstreckung nach § 782 auch gegenüber den Gläubigern verlangen, die nicht Nachlassgläubiger sind, es sei denn, dass er für die Nachlassverbindlichkeiten unbeschränkt haftet.
§ 784 Zwangsvollstreckung bei Nachlassverwaltung und -insolvenzverfahren
(1) Ist eine Nachlassverwaltung angeordnet oder das Nachlassinsolvenzverfahren eröffnet, so kann der Erbe verlangen, dass Maßregeln der Zwangsvollstreckung, die zugunsten eines Nachlassgläubigers in sein nicht zum Nachlass gehörendes Vermögen erfolgt sind, aufgehoben werden, es sei denn, dass er für die Nachlassverbindlichkeiten unbeschränkt haftet.
(2) Im Falle der Nachlassverwaltung steht dem Nachlassverwalter das gleiche Recht gegenüber Maßregeln der Zwangsvollstreckung zu, die zugunsten eines anderen Gläubigers als eines Nachlassgläubigers in den Nachlass erfolgt sind.
§ 785 Vollstreckungsabwehrklage des Erben
Die auf Grund der §§ 781 bis 784 erhobenen Einwendungen werden nach den Vorschriften der §§ 767, 769, 770 erledigt.
§ 786 Vollstreckungsabwehrklage bei beschränkter Haftung
(1) Die Vorschriften des § 780 Abs. 1 und der §§ 781 bis 785 sind auf die nach § 1489 des Bürgerlichen Gesetzbuchs eintretende beschränkte Haftung, die Vorschriften des § 780 Abs. 1 und der §§ 781, 785 sind auf die nach den §§ 1480, 1504, 1629a, 2187 des Bürgerlichen Gesetzbuchs eintretende beschränkte Haftung entsprechend anzuwenden.
(2) Bei der Zwangsvollstreckung aus Urteilen, die bis zum Inkrafttreten des Minderjährigenhaftungsbeschränkungsgesetzes vom 25. August 1998 (BGBl. I S. 2487) am 1. Juli 1999 ergangen sind, kann die Haftungsbeschränkung nach § 1629a des Bürgerlichen Gesetzbuchs auch dann geltend gemacht werden, wenn sie nicht gemäß § 780 Abs. 1 dieses Gesetzes im Urteil vorbehalten ist.
§ 786a See- und binnenschifffahrtsrechtliche Haftungsbeschränkung
(1) Die Vorschriften des § 780 Abs. 1 und des § 781 sind auf die nach § 611 Absatz 1 oder 3, §§ 612 bis 616 des Handelsgesetzbuchs oder nach den §§ 4 bis 5m des Binnenschifffahrtsgesetzes eintretende beschränkte Haftung entsprechend anzuwenden.
(2) Ist das Urteil nach § 305a unter Vorbehalt ergangen, so gelten für die Zwangsvollstreckung die folgenden Vorschriften: 1. Wird die Eröffnung eines Seerechtlichen oder eines Binnenschifffahrtsrechtlichen Verteilungsverfahrens
nach der Schifffahrtsrechtlichen Verteilungsordnung beantragt, an dem der Gläubiger mit dem Anspruch teilnimmt, so entscheidet das Gericht nach § 5 Abs. 3 der Schifffahrtsrechtlichen Verteilungsordnung über die Einstellung der Zwangsvollstreckung; nach Eröffnung des Seerechtlichen Verteilungsverfahrens sind
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die Vorschriften des § 8 Abs. 4 und 5 der Schifffahrtsrechtlichen Verteilungsordnung, nach Eröffnung des Binnenschifffahrtsrechtlichen Verteilungsverfahrens die Vorschriften des § 8 Abs. 4 und 5 in Verbindung mit § 41 der Schifffahrtsrechtlichen Verteilungsordnung anzuwenden.
2. Ist nach Artikel 11 des Haftungsbeschränkungsübereinkommens (§ 611 Absatz 1 Satz 1 des Handelsgesetzbuchs) von dem Schuldner oder für ihn ein Fonds in einem anderen Vertragsstaat des Übereinkommens errichtet worden, so sind, sofern der Gläubiger den Anspruch gegen den Fonds geltend gemacht hat, die Vorschriften des § 50 der Schifffahrtsrechtlichen Verteilungsordnung anzuwenden. Hat der Gläubiger den Anspruch nicht gegen den Fonds geltend gemacht oder sind die Voraussetzungen des § 50 Abs. 2 der Schifffahrtsrechtlichen Verteilungsordnung nicht gegeben, so werden Einwendungen, die auf Grund des Rechts auf Beschränkung der Haftung erhoben werden, nach den Vorschriften der §§ 767, 769, 770 erledigt; das Gleiche gilt, wenn der Fonds in dem anderen Vertragsstaat erst bei Geltendmachung des Rechts auf Beschränkung der Haftung errichtet wird.
3. Ist von dem Schuldner oder für diesen ein Fonds in einem anderen Vertragsstaat des Straßburger Übereinkommens über die Beschränkung der Haftung in der Binnenschifffahrt - CLNI (BGBl. 1988 II S. 1643) errichtet worden, so ist, sofern der Gläubiger den Anspruch gegen den Fonds geltend gemacht hat, § 52 der Schifffahrtsrechtlichen Verteilungsordnung anzuwenden. Hat der Gläubiger den Anspruch nicht gegen den Fonds geltend gemacht oder sind die Voraussetzungen des § 52 Abs. 3 der Schifffahrtsrechtlichen Verteilungsordnung nicht gegeben, so werden Einwendungen, die auf Grund des Rechts auf Beschränkung der Haftung nach den §§ 4 bis 5m des Binnenschifffahrtsgesetzes erhoben werden, nach den Vorschriften der §§ 767, 769, 770 erledigt; das Gleiche gilt, wenn der Fonds in dem anderen Vertragsstaat erst bei Geltendmachung des Rechts auf Beschränkung der Haftung errichtet wird.
(3) Ist das Urteil eines ausländischen Gerichts unter dem Vorbehalt ergangen, dass der Beklagte das Recht auf Beschränkung der Haftung geltend machen kann, wenn ein Fonds nach Artikel 11 des Haftungsbeschränkungsübereinkommens oder nach Artikel 11 des Straßburger Übereinkommens über die Beschränkung der Haftung in der Binnenschifffahrt errichtet worden ist oder bei Geltendmachung des Rechts auf Beschränkung der Haftung errichtet wird, so gelten für die Zwangsvollstreckung wegen des durch das Urteil festgestellten Anspruchs die Vorschriften des Absatzes 2 entsprechend.
§ 787 Zwangsvollstreckung bei herrenlosem Grundstück oder Schiff
(1) Soll durch die Zwangsvollstreckung ein Recht an einem Grundstück, das von dem bisherigen Eigentümer nach § 928 des Bürgerlichen Gesetzbuchs aufgegeben und von dem Aneignungsberechtigten noch nicht erworben worden ist, geltend gemacht werden, so hat das Vollstreckungsgericht auf Antrag einen Vertreter zu bestellen, dem bis zur Eintragung eines neuen Eigentümers die Wahrnehmung der sich aus dem Eigentum ergebenden Rechte und Verpflichtungen im Zwangsvollstreckungsverfahren obliegt.
(2) Absatz 1 gilt entsprechend, wenn durch die Zwangsvollstreckung ein Recht an einem eingetragenen Schiff oder Schiffsbauwerk geltend gemacht werden soll, das von dem bisherigen Eigentümer nach § 7 des Gesetzes über Rechte an eingetragenen Schiffen und Schiffsbauwerken vom 15. November 1940 (RGBl. I S. 1499) aufgegeben und von dem Aneignungsberechtigten noch nicht erworben worden ist.
§ 788 Kosten der Zwangsvollstreckung
(1) Die Kosten der Zwangsvollstreckung fallen, soweit sie notwendig waren (§ 91), dem Schuldner zur Last; sie sind zugleich mit dem zur Zwangsvollstreckung stehenden Anspruch beizutreiben. Als Kosten der Zwangsvollstreckung gelten auch die Kosten der Ausfertigung und der Zustellung des Urteils. Soweit mehrere Schuldner als Gesamtschuldner verurteilt worden sind, haften sie auch für die Kosten der Zwangsvollstreckung als Gesamtschuldner; § 100 Abs. 3 und 4 gilt entsprechend.
(2) Auf Antrag setzt das Vollstreckungsgericht, bei dem zum Zeitpunkt der Antragstellung eine Vollstreckungshandlung anhängig ist, und nach Beendigung der Zwangsvollstreckung das Gericht, in dessen Bezirk die letzte Vollstreckungshandlung erfolgt ist, die Kosten gemäß § 103 Abs. 2, den §§ 104, 107 fest. Im Falle einer Vollstreckung nach den Vorschriften der §§ 887, 888 und 890 entscheidet das Prozessgericht des ersten Rechtszuges.
(3) Die Kosten der Zwangsvollstreckung sind dem Schuldner zu erstatten, wenn das Urteil, aus dem die Zwangsvollstreckung erfolgt ist, aufgehoben wird.
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(4) Die Kosten eines Verfahrens nach den §§ 765a, 811a, 811b, 829, 850k, 850l, 851a und 851b kann das Gericht ganz oder teilweise dem Gläubiger auferlegen, wenn dies aus besonderen, in dem Verhalten des Gläubigers liegenden Gründen der Billigkeit entspricht.
§ 789 Einschreiten von Behörden
Wird zum Zwecke der Vollstreckung das Einschreiten einer Behörde erforderlich, so hat das Gericht die Behörde um ihr Einschreiten zu ersuchen.
§ 790 (weggefallen)
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§ 791
(weggefallen)
§ 792 Erteilung von Urkunden an Gläubiger
Bedarf der Gläubiger zum Zwecke der Zwangsvollstreckung eines Erbscheins oder einer anderen Urkunde, die dem Schuldner auf Antrag von einer Behörde, einem Beamten oder einem Notar zu erteilen ist, so kann er die Erteilung an Stelle des Schuldners verlangen.
§ 793 Sofortige Beschwerde
Gegen Entscheidungen, die im Zwangsvollstreckungsverfahren ohne mündliche Verhandlung ergehen können, findet sofortige Beschwerde statt.
§ 794 Weitere Vollstreckungstitel
(1) Die Zwangsvollstreckung findet ferner statt: 1. aus Vergleichen, die zwischen den Parteien oder zwischen einer Partei und einem Dritten zur Beilegung
des Rechtsstreits seinem ganzen Umfang nach oder in Betreff eines Teiles des Streitgegenstandes vor einem deutschen Gericht oder vor einer durch die Landesjustizverwaltung eingerichteten oder anerkannten Gütestelle abgeschlossen sind, sowie aus Vergleichen, die gemäß § 118 Abs. 1 Satz 3 oder § 492 Abs. 3 zu richterlichem Protokoll genommen sind;
2. aus Kostenfestsetzungsbeschlüssen; 2a. (weggefallen) 2b. (weggefallen) 3. aus Entscheidungen, gegen die das Rechtsmittel der Beschwerde stattfindet; 3a. (weggefallen) 4. aus Vollstreckungsbescheiden; 4a. aus Entscheidungen, die Schiedssprüche für vollstreckbar erklären, sofern die Entscheidungen
rechtskräftig oder für vorläufig vollstreckbar erklärt sind; 4b. aus Beschlüssen nach § 796b oder § 796c; 5. aus Urkunden, die von einem deutschen Gericht oder von einem deutschen Notar innerhalb der
Grenzen seiner Amtsbefugnisse in der vorgeschriebenen Form aufgenommen sind, sofern die Urkunde über einen Anspruch errichtet ist, der einer vergleichsweisen Regelung zugänglich, nicht auf Abgabe einer Willenserklärung gerichtet ist und nicht den Bestand eines Mietverhältnisses über Wohnraum betrifft, und der Schuldner sich in der Urkunde wegen des zu bezeichnenden Anspruchs der sofortigen Zwangsvollstreckung unterworfen hat;
6. aus für vollstreckbar erklärten Europäischen Zahlungsbefehlen.
(2) Soweit nach den Vorschriften der §§ 737, 743, des § 745 Abs. 2 und des § 748 Abs. 2 die Verurteilung eines Beteiligten zur Duldung der Zwangsvollstreckung erforderlich ist, wird sie dadurch ersetzt, dass der Beteiligte
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in einer nach Absatz 1 Nr. 5 aufgenommenen Urkunde die sofortige Zwangsvollstreckung in die seinem Recht unterworfenen Gegenstände bewilligt.
§ 794a Zwangsvollstreckung aus Räumungsvergleich
(1) Hat sich der Schuldner in einem Vergleich, aus dem die Zwangsvollstreckung stattfindet, zur Räumung von Wohnraum verpflichtet, so kann ihm das Amtsgericht, in dessen Bezirk der Wohnraum belegen ist, auf Antrag eine den Umständen nach angemessene Räumungsfrist bewilligen. Der Antrag ist spätestens zwei Wochen vor dem Tag, an dem nach dem Vergleich zu räumen ist, zu stellen; §§ 233 bis 238 gelten sinngemäß. Die Entscheidung ergeht durch Beschluss. Vor der Entscheidung ist der Gläubiger zu hören. Das Gericht ist befugt, die im § 732 Abs. 2 bezeichneten Anordnungen zu erlassen.
(2) Die Räumungsfrist kann auf Antrag verlängert oder verkürzt werden. Absatz 1 Satz 2 bis 5 gilt entsprechend.
(3) Die Räumungsfrist darf insgesamt nicht mehr als ein Jahr, gerechnet vom Tag des Abschlusses des Vergleichs, betragen. Ist nach dem Vergleich an einem späteren Tag zu räumen, so rechnet die Frist von diesem Tag an.
(4) Gegen die Entscheidung des Amtsgerichts findet die sofortige Beschwerde statt.
(5) Die Absätze 1 bis 4 gelten nicht für Mietverhältnisse über Wohnraum im Sinne des § 549 Abs. 2 Nr. 3 sowie in den Fällen des § 575 des Bürgerlichen Gesetzbuchs. Endet ein Mietverhältnis im Sinne des § 575 des Bürgerlichen Gesetzbuchs durch außerordentliche Kündigung, kann eine Räumungsfrist höchstens bis zum vertraglich bestimmten Zeitpunkt der Beendigung gewährt werden.
§ 795 Anwendung der allgemeinen Vorschriften auf die weiteren Vollstreckungstitel
Auf die Zwangsvollstreckung aus den in § 794 erwähnten Schuldtiteln sind die Vorschriften der §§ 724 bis 793 entsprechend anzuwenden, soweit nicht in den §§ 795a bis 800 abweichende Vorschriften enthalten sind. Auf die Zwangsvollstreckung aus den in § 794 Abs. 1 Nr. 2 erwähnten Schuldtiteln ist § 720a entsprechend anzuwenden, wenn die Schuldtitel auf Urteilen beruhen, die nur gegen Sicherheitsleistung vorläufig vollstreckbar sind. Für die Zwangsvollstreckung aus für vollstreckbar erklärten Europäischen Zahlungsbefehlen gelten ergänzend die §§ 1093 bis 1096.
§ 795a Zwangsvollstreckung aus Kostenfestsetzungsbeschluss
Die Zwangsvollstreckung aus einem Kostenfestsetzungsbeschluss, der nach § 105 auf das Urteil gesetzt ist, erfolgt auf Grund einer vollstreckbaren Ausfertigung des Urteils; einer besonderen Vollstreckungsklausel für den Festsetzungsbeschluss bedarf es nicht.
§ 795b Vollstreckbarerklärung des gerichtlichen Vergleichs
Bei Vergleichen, die vor einem deutschen Gericht geschlossen sind (§ 794 Abs. 1 Nr. 1) und deren Wirksamkeit ausschließlich vom Eintritt einer sich aus der Verfahrensakte ergebenden Tatsache abhängig ist, wird die Vollstreckungsklausel von dem Urkundsbeamten der Geschäftsstelle des Gerichts des ersten Rechtszugs und, wenn der Rechtsstreit bei einem höheren Gericht anhängig ist, von dem Urkundsbeamten der Geschäftsstelle dieses Gerichts erteilt.
§ 796 Zwangsvollstreckung aus Vollstreckungsbescheiden
(1) Vollstreckungsbescheide bedürfen der Vollstreckungsklausel nur, wenn die Zwangsvollstreckung für einen anderen als den in dem Bescheid bezeichneten Gläubiger oder gegen einen anderen als den in dem Bescheid bezeichneten Schuldner erfolgen soll.
(2) Einwendungen, die den Anspruch selbst betreffen, sind nur insoweit zulässig, als die Gründe, auf denen sie beruhen, nach Zustellung des Vollstreckungsbescheids entstanden sind und durch Einspruch nicht mehr geltend gemacht werden können.
(3) Für Klagen auf Erteilung der Vollstreckungsklausel sowie für Klagen, durch welche die den Anspruch selbst betreffenden Einwendungen geltend gemacht werden oder der bei der Erteilung der Vollstreckungsklausel als bewiesen angenommene Eintritt der Voraussetzung für die Erteilung der Vollstreckungsklausel bestritten wird, ist das Gericht zuständig, das für eine Entscheidung im Streitverfahren zuständig gewesen wäre.
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§ 796a Voraussetzungen für die Vollstreckbarerklärung des Anwaltsvergleichs
(1) Ein von Rechtsanwälten im Namen und mit Vollmacht der von ihnen vertretenen Parteien abgeschlossener Vergleich wird auf Antrag einer Partei für vollstreckbar erklärt, wenn sich der Schuldner darin der sofortigen Zwangsvollstreckung unterworfen hat und der Vergleich unter Angabe des Tages seines Zustandekommens bei einem Amtsgericht niedergelegt ist, bei dem eine der Parteien zur Zeit des Vergleichsabschlusses ihren allgemeinen Gerichtsstand hat.
(2) Absatz 1 gilt nicht, wenn der Vergleich auf die Abgabe einer Willenserklärung gerichtet ist oder den Bestand eines Mietverhältnisses über Wohnraum betrifft.
(3) Die Vollstreckbarerklärung ist abzulehnen, wenn der Vergleich unwirksam ist oder seine Anerkennung gegen die öffentliche Ordnung verstoßen würde.
§ 796b Vollstreckbarerklärung durch das Prozessgericht
(1) Für die Vollstreckbarerklärung nach § 796a Abs. 1 ist das Gericht als Prozessgericht zuständig, das für die gerichtliche Geltendmachung des zu vollstreckenden Anspruchs zuständig wäre.
(2) Vor der Entscheidung über den Antrag auf Vollstreckbarerklärung ist der Gegner zu hören. Die Entscheidung ergeht durch Beschluss. Eine Anfechtung findet nicht statt.
§ 796c Vollstreckbarerklärung durch einen Notar
(1) Mit Zustimmung der Parteien kann ein Vergleich ferner von einem Notar, der seinen Amtssitz im Bezirk eines nach § 796a Abs. 1 zuständigen Gerichts hat, in Verwahrung genommen und für vollstreckbar erklärt werden. Die §§ 796a und 796b gelten entsprechend.
(2) Lehnt der Notar die Vollstreckbarerklärung ab, ist dies zu begründen. Die Ablehnung durch den Notar kann mit dem Antrag auf gerichtliche Entscheidung bei dem nach § 796b Abs. 1 zuständigen Gericht angefochten werden.
§ 797 Verfahren bei vollstreckbaren Urkunden
(1) Die vollstreckbare Ausfertigung gerichtlicher Urkunden wird von dem Urkundsbeamten der Geschäftsstelle des Gerichts erteilt, das die Urkunde verwahrt.
(2) Die vollstreckbare Ausfertigung notarieller Urkunden wird von dem Notar erteilt, der die Urkunde verwahrt. Befindet sich die Urkunde in der Verwahrung einer Behörde, so hat diese die vollstreckbare Ausfertigung zu erteilen.
(3) Die Entscheidung über Einwendungen, welche die Zulässigkeit der Vollstreckungsklausel und die Zulässigkeit der Erteilung einer weiteren vollstreckbaren Ausfertigung betreffen, wird bei gerichtlichen Urkunden von dem die Urkunde verwahrenden Gericht, bei notariellen Urkunden von dem Amtsgericht getroffen, in dessen Bezirk der die Urkunde verwahrende Notar oder die verwahrende Behörde den Amtssitz hat. Die Entscheidung über die Erteilung einer weiteren vollstreckbaren Ausfertigung wird bei gerichtlichen Urkunden von dem die Urkunde verwahrenden Gericht getroffen, bei einer notariellen Urkunde von dem die Urkunde verwahrenden Notar oder, wenn die Urkunde von einer Behörde verwahrt wird, von dem Amtsgericht, in dessen Bezirk diese Behörde ihren Amtssitz hat.
(4) Auf die Geltendmachung von Einwendungen, die den Anspruch selbst betreffen, ist die beschränkende Vorschrift des § 767 Abs. 2 nicht anzuwenden.
(5) Für Klagen auf Erteilung der Vollstreckungsklausel sowie für Klagen, durch welche die den Anspruch selbst betreffenden Einwendungen geltend gemacht werden oder der bei der Erteilung der Vollstreckungsklausel als bewiesen angenommene Eintritt der Voraussetzung für die Erteilung der Vollstreckungsklausel bestritten wird, ist das Gericht, bei dem der Schuldner im Inland seinen allgemeinen Gerichtsstand hat, und sonst das Gericht zuständig, bei dem nach § 23 gegen den Schuldner Klage erhoben werden kann.
(6) Auf Beschlüsse nach § 796c sind die Absätze 2 bis 5 entsprechend anzuwenden.
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§ 797a Verfahren bei Gütestellenvergleichen
(1) Bei Vergleichen, die vor Gütestellen der im § 794 Abs. 1 Nr. 1 bezeichneten Art geschlossen sind, wird die Vollstreckungsklausel von dem Urkundsbeamten der Geschäftsstelle desjenigen Amtsgerichts erteilt, in dessen Bezirk die Gütestelle ihren Sitz hat.
(2) Über Einwendungen, welche die Zulässigkeit der Vollstreckungsklausel betreffen, entscheidet das im Absatz 1 bezeichnete Gericht.
(3) § 797 Abs. 5 gilt entsprechend.
(4) Die Landesjustizverwaltung kann Vorsteher von Gütestellen ermächtigen, die Vollstreckungsklausel für Vergleiche zu erteilen, die vor der Gütestelle geschlossen sind. Die Ermächtigung erstreckt sich nicht auf die Fälle des § 726 Abs. 1, der §§ 727 bis 729 und des § 733. Über Einwendungen, welche die Zulässigkeit der Vollstreckungsklausel betreffen, entscheidet das im Absatz 1 bezeichnete Gericht.
§ 798 Wartefrist
Aus einem Kostenfestsetzungsbeschluss, der nicht auf das Urteil gesetzt ist, aus Beschlüssen nach § 794 Abs. 1 Nr. 4b sowie aus den nach § 794 Abs. 1 Nr. 5 aufgenommenen Urkunden darf die Zwangsvollstreckung nur beginnen, wenn der Schuldtitel mindestens zwei Wochen vorher zugestellt ist.
§ 798a (weggefallen)
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§ 799 Vollstreckbare Urkunde bei Rechtsnachfolge
Hat sich der Eigentümer eines mit einer Hypothek, einer Grundschuld oder einer Rentenschuld belasteten Grundstücks in einer nach § 794 Abs. 1 Nr. 5 aufgenommenen Urkunde der sofortigen Zwangsvollstreckung unterworfen und ist dem Rechtsnachfolger des Gläubigers eine vollstreckbare Ausfertigung erteilt, so ist die Zustellung der die Rechtsnachfolge nachweisenden öffentlichen oder öffentlich beglaubigten Urkunde nicht erforderlich, wenn der Rechtsnachfolger als Gläubiger im Grundbuch eingetragen ist.
§ 799a Schadensersatzpflicht bei der Vollstreckung aus Urkunden durch andere Gläubiger
Hat sich der Eigentümer eines Grundstücks in Ansehung einer Hypothek oder Grundschuld in einer Urkunde nach § 794 Abs. 1 Nr. 5 der sofortigen Zwangsvollstreckung in das Grundstück unterworfen und betreibt ein anderer als der in der Urkunde bezeichnete Gläubiger die Vollstreckung, so ist dieser, soweit die Vollstreckung aus der Urkunde für unzulässig erklärt wird, dem Schuldner zum Ersatz des Schadens verpflichtet, der diesem durch die Vollstreckung aus der Urkunde oder durch eine zur Abwendung der Vollstreckung erbrachte Leistung entsteht. Satz 1 gilt entsprechend, wenn sich der Schuldner wegen der Forderungen, zu deren Sicherung das Grundpfandrecht bestellt worden ist, oder wegen der Forderung aus einem demselben Zweck dienenden Schuldanerkenntnis der sofortigen Vollstreckung in sein Vermögen unterworfen hat.
§ 800 Vollstreckbare Urkunde gegen den jeweiligen Grundstückseigentümer
(1) Der Eigentümer kann sich in einer nach § 794 Abs. 1 Nr. 5 aufgenommenen Urkunde in Ansehung einer Hypothek, einer Grundschuld oder einer Rentenschuld der sofortigen Zwangsvollstreckung in der Weise unterwerfen, dass die Zwangsvollstreckung aus der Urkunde gegen den jeweiligen Eigentümer des Grundstücks zulässig sein soll. Die Unterwerfung bedarf in diesem Fall der Eintragung in das Grundbuch.
(2) Bei der Zwangsvollstreckung gegen einen späteren Eigentümer, der im Grundbuch eingetragen ist, bedarf es nicht der Zustellung der den Erwerb des Eigentums nachweisenden öffentlichen oder öffentlich beglaubigten Urkunde.
(3) Ist die sofortige Zwangsvollstreckung gegen den jeweiligen Eigentümer zulässig, so ist für die im § 797 Abs. 5 bezeichneten Klagen das Gericht zuständig, in dessen Bezirk das Grundstück belegen ist.
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§ 800a Vollstreckbare Urkunde bei Schiffshypothek
(1) Die Vorschriften der §§ 799, 800 gelten für eingetragene Schiffe und Schiffsbauwerke, die mit einer Schiffshypothek belastet sind, entsprechend.
(2) Ist die sofortige Zwangsvollstreckung gegen den jeweiligen Eigentümer zulässig, so ist für die im § 797 Abs. 5 bezeichneten Klagen das Gericht zuständig, in dessen Bezirk das Register für das Schiff oder das Schiffsbauwerk geführt wird.
§ 801 Landesrechtliche Vollstreckungstitel
(1) Die Landesgesetzgebung ist nicht gehindert, auf Grund anderer als der in den §§ 704, 794 bezeichneten Schuldtitel die gerichtliche Zwangsvollstreckung zuzulassen und insoweit von diesem Gesetz abweichende Vorschriften über die Zwangsvollstreckung zu treffen.
(2) Aus landesrechtlichen Schuldtiteln im Sinne des Absatzes 1 kann im gesamten Bundesgebiet vollstreckt werden.
§ 802 Ausschließlichkeit der Gerichtsstände
Die in diesem Buch angeordneten Gerichtsstände sind ausschließliche.
Abschnitt 2 Zwangsvollstreckung wegen Geldforderungen
Titel 1 Allgemeine Vorschriften § 802a Grundsätze der Vollstreckung; Regelbefugnisse des Gerichtsvollziehers
(1) Der Gerichtsvollzieher wirkt auf eine zügige, vollständige und Kosten sparende Beitreibung von Geldforderungen hin.
(2) Auf Grund eines entsprechenden Vollstreckungsauftrags und der Übergabe der vollstreckbaren Ausfertigung ist der Gerichtsvollzieher unbeschadet weiterer Zuständigkeiten befugt, 1. eine gütliche Erledigung der Sache (§ 802b) zu versuchen, 2. eine Vermögensauskunft des Schuldners (§ 802c) einzuholen, 3. Auskünfte Dritter über das Vermögen des Schuldners (§ 802l) einzuholen, 4. die Pfändung und Verwertung körperlicher Sachen zu betreiben, 5. eine Vorpfändung (§ 845) durchzuführen; hierfür bedarf es nicht der vorherigen Erteilung einer
vollstreckbaren Ausfertigung und der Zustellung des Schuldtitels. Die Maßnahmen sind in dem Vollstreckungsauftrag zu bezeichnen, die Maßnahme nach Satz 1 Nr. 1 jedoch nur dann, wenn sich der Auftrag hierauf beschränkt.
§ 802b Gütliche Erledigung; Vollstreckungsaufschub bei Zahlungsvereinbarung
(1) Der Gerichtsvollzieher soll in jeder Lage des Verfahrens auf eine gütliche Erledigung bedacht sein.
(2) Hat der Gläubiger eine Zahlungsvereinbarung nicht ausgeschlossen, so kann der Gerichtsvollzieher dem Schuldner eine Zahlungsfrist einräumen oder eine Tilgung durch Teilleistungen (Ratenzahlung) gestatten, sofern der Schuldner glaubhaft darlegt, die nach Höhe und Zeitpunkt festzusetzenden Zahlungen erbringen zu können. Soweit ein Zahlungsplan nach Satz 1 festgesetzt wird, ist die Vollstreckung aufgeschoben. Die Tilgung soll binnen zwölf Monaten abgeschlossen sein.
(3) Der Gerichtsvollzieher unterrichtet den Gläubiger unverzüglich über den gemäß Absatz 2 festgesetzten Zahlungsplan und den Vollstreckungsaufschub. Widerspricht der Gläubiger unverzüglich, so wird der
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Zahlungsplan mit der Unterrichtung des Schuldners hinfällig; zugleich endet der Vollstreckungsaufschub. Dieselben Wirkungen treten ein, wenn der Schuldner mit einer festgesetzten Zahlung ganz oder teilweise länger als zwei Wochen in Rückstand gerät.
§ 802c Vermögensauskunft des Schuldners
(1) Der Schuldner ist verpflichtet, zum Zwecke der Vollstreckung einer Geldforderung auf Verlangen des Gerichtsvollziehers Auskunft über sein Vermögen nach Maßgabe der folgenden Vorschriften zu erteilen sowie seinen Geburtsnamen, sein Geburtsdatum und seinen Geburtsort anzugeben. Handelt es sich bei dem Vollstreckungsschuldner um eine juristische Person oder um eine Personenvereinigung, so hat er seine Firma, die Nummer des Registerblatts im Handelsregister und seinen Sitz anzugeben.
(2) Zur Auskunftserteilung hat der Schuldner alle ihm gehörenden Vermögensgegenstände anzugeben. Bei Forderungen sind Grund und Beweismittel zu bezeichnen. Ferner sind anzugeben: 1. die entgeltlichen Veräußerungen des Schuldners an eine nahestehende Person (§ 138 der
Insolvenzordnung), die dieser in den letzten zwei Jahren vor dem Termin nach § 802f Abs. 1 und bis zur Abgabe der Vermögensauskunft vorgenommen hat;
2. die unentgeltlichen Leistungen des Schuldners, die dieser in den letzten vier Jahren vor dem Termin nach § 802f Abs. 1 und bis zur Abgabe der Vermögensauskunft vorgenommen hat, sofern sie sich nicht auf gebräuchliche Gelegenheitsgeschenke geringen Wertes richteten.
Sachen, die nach § 811 Abs. 1 Nr. 1 und 2 der Pfändung offensichtlich nicht unterworfen sind, brauchen nicht angegeben zu werden, es sei denn, dass eine Austauschpfändung in Betracht kommt.
(3) Der Schuldner hat zu Protokoll an Eides statt zu versichern, dass er die Angaben nach den Absätzen 1 und 2 nach bestem Wissen und Gewissen richtig und vollständig gemacht habe. Die Vorschriften der §§ 478 bis 480, 483 gelten entsprechend.
§ 802d Erneute Vermögensauskunft
(1) Ein Schuldner, der die Vermögensauskunft nach § 802c dieses Gesetzes oder nach § 284 der Abgabenordnung innerhalb der letzten zwei Jahre abgegeben hat, ist zur erneuten Abgabe nur verpflichtet, wenn ein Gläubiger Tatsachen glaubhaft macht, die auf eine wesentliche Veränderung der Vermögensverhältnisse des Schuldners schließen lassen. Andernfalls leitet der Gerichtsvollzieher dem Gläubiger einen Ausdruck des letzten abgegebenen Vermögensverzeichnisses zu. Der Gläubiger darf die erlangten Daten nur zu Vollstreckungszwecken nutzen und hat die Daten nach Zweckerreichung zu löschen; hierauf ist er vom Gerichtsvollzieher hinzuweisen. Von der Zuleitung eines Ausdrucks nach Satz 2 setzt der Gerichtsvollzieher den Schuldner in Kenntnis und belehrt ihn über die Möglichkeit der Eintragung in das Schuldnerverzeichnis (§ 882c).
(2) Anstelle der Zuleitung eines Ausdrucks kann dem Gläubiger auf Antrag das Vermögensverzeichnis als elektronisches Dokument übermittelt werden, wenn dieses mit einer qualifizierten elektronischen Signatur versehen und gegen unbefugte Kenntnisnahme geschützt ist.
§ 802e Zuständigkeit
(1) Für die Abnahme der Vermögensauskunft und der eidesstattlichen Versicherung ist der Gerichtsvollzieher bei dem Amtsgericht zuständig, in dessen Bezirk der Schuldner im Zeitpunkt der Auftragserteilung seinen Wohnsitz oder in Ermangelung eines solchen seinen Aufenthaltsort hat.
(2) Ist der angegangene Gerichtsvollzieher nicht zuständig, so leitet er die Sache auf Antrag des Gläubigers an den zuständigen Gerichtsvollzieher weiter.
§ 802f Verfahren zur Abnahme der Vermögensauskunft
(1) Zur Abnahme der Vermögensauskunft setzt der Gerichtsvollzieher dem Schuldner für die Begleichung der Forderung eine Frist von zwei Wochen. Zugleich bestimmt er für den Fall, dass die Forderung nach Fristablauf nicht vollständig beglichen ist, einen Termin zur Abgabe der Vermögensauskunft alsbald nach Fristablauf und lädt den Schuldner zu diesem Termin in seine Geschäftsräume. Der Schuldner hat die zur Abgabe der Vermögensauskunft erforderlichen Unterlagen im Termin beizubringen.
(2) Abweichend von Absatz 1 kann der Gerichtsvollzieher bestimmen, dass die Abgabe der Vermögensauskunft in der Wohnung des Schuldners stattfindet. Der Schuldner kann dieser Bestimmung binnen einer Woche
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gegenüber dem Gerichtsvollzieher widersprechen. Andernfalls gilt der Termin als pflichtwidrig versäumt, wenn der Schuldner in diesem Termin aus Gründen, die er zu vertreten hat, die Vermögensauskunft nicht abgibt.
(3) Mit der Terminsladung ist der Schuldner über die nach § 802c Abs. 2 erforderlichen Angaben zu belehren. Der Schuldner ist über seine Rechte und Pflichten nach den Absätzen 1 und 2, über die Folgen einer unentschuldigten Terminssäumnis oder einer Verletzung seiner Auskunftspflichten sowie über die Möglichkeit der Einholung von Auskünften Dritter nach § 802l und der Eintragung in das Schuldnerverzeichnis bei Abgabe der Vermögensauskunft nach § 882c zu belehren.
(4) Zahlungsaufforderungen, Ladungen, Bestimmungen und Belehrungen nach den Absätzen 1 bis 3 sind dem Schuldner zuzustellen, auch wenn dieser einen Prozessbevollmächtigten bestellt hat; einer Mitteilung an den Prozessbevollmächtigten bedarf es nicht. Dem Gläubiger ist die Terminsbestimmung nach Maßgabe des § 357 Abs. 2 mitzuteilen.
(5) Der Gerichtsvollzieher errichtet eine Aufstellung mit den nach § 802c Absatz 1 und 2 erforderlichen Angaben als elektronisches Dokument (Vermögensverzeichnis). Diese Angaben sind dem Schuldner vor Abgabe der Versicherung nach § 802c Abs. 3 vorzulesen oder zur Durchsicht auf einem Bildschirm wiederzugeben. Dem Schuldner ist auf Verlangen ein Ausdruck zu erteilen.
(6) Der Gerichtsvollzieher hinterlegt das Vermögensverzeichnis bei dem zentralen Vollstreckungsgericht nach § 802k Abs. 1 und leitet dem Gläubiger unverzüglich einen Ausdruck zu. Der Ausdruck muss den Vermerk enthalten, dass er mit dem Inhalt des Vermögensverzeichnisses übereinstimmt; § 802d Abs. 1 Satz 3 und Abs. 2 gilt entsprechend.
§ 802g Erzwingungshaft
(1) Auf Antrag des Gläubigers erlässt das Gericht gegen den Schuldner, der dem Termin zur Abgabe der Vermögensauskunft unentschuldigt fernbleibt oder die Abgabe der Vermögensauskunft gemäß § 802c ohne Grund verweigert, zur Erzwingung der Abgabe einen Haftbefehl. In dem Haftbefehl sind der Gläubiger, der Schuldner und der Grund der Verhaftung zu bezeichnen. Einer Zustellung des Haftbefehls vor seiner Vollziehung bedarf es nicht.
(2) Die Verhaftung des Schuldners erfolgt durch einen Gerichtsvollzieher. Dem Schuldner ist der Haftbefehl bei der Verhaftung in beglaubigter Abschrift zu übergeben.
§ 802h Unzulässigkeit der Haftvollstreckung
(1) Die Vollziehung des Haftbefehls ist unstatthaft, wenn seit dem Tag, an dem der Haftbefehl erlassen wurde, zwei Jahre vergangen sind.
(2) Gegen einen Schuldner, dessen Gesundheit durch die Vollstreckung der Haft einer nahen und erheblichen Gefahr ausgesetzt würde, darf, solange dieser Zustand dauert, die Haft nicht vollstreckt werden.
§ 802i Vermögensauskunft des verhafteten Schuldners
(1) Der verhaftete Schuldner kann zu jeder Zeit bei dem Gerichtsvollzieher des Amtsgerichts des Haftortes verlangen, ihm die Vermögensauskunft abzunehmen. Dem Verlangen ist unverzüglich stattzugeben; § 802f Abs. 5 gilt entsprechend. Dem Gläubiger wird die Teilnahme ermöglicht, wenn er dies beantragt hat und seine Teilnahme nicht zu einer Verzögerung der Abnahme führt.
(2) Nach Abgabe der Vermögensauskunft wird der Schuldner aus der Haft entlassen. § 802f Abs. 5 und 6 gilt entsprechend.
(3) Kann der Schuldner vollständige Angaben nicht machen, weil er die erforderlichen Unterlagen nicht bei sich hat, so kann der Gerichtsvollzieher einen neuen Termin bestimmen und die Vollziehung des Haftbefehls bis zu diesem Termin aussetzen. § 802f gilt entsprechend; der Setzung einer Zahlungsfrist bedarf es nicht.
§ 802j Dauer der Haft; erneute Haft
(1) Die Haft darf die Dauer von sechs Monaten nicht übersteigen. Nach Ablauf der sechs Monate wird der Schuldner von Amts wegen aus der Haft entlassen.
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(2) Gegen den Schuldner, der ohne sein Zutun auf Antrag des Gläubigers aus der Haft entlassen ist, findet auf Antrag desselben Gläubigers eine Erneuerung der Haft nicht statt.
(3) Ein Schuldner, gegen den wegen Verweigerung der Abgabe der Vermögensauskunft eine Haft von sechs Monaten vollstreckt ist, kann innerhalb der folgenden zwei Jahre auch auf Antrag eines anderen Gläubigers nur unter den Voraussetzungen des § 802d von neuem zur Abgabe einer solchen Vermögensauskunft durch Haft angehalten werden.
§ 802k Zentrale Verwaltung der Vermögensverzeichnisse
(1) Nach § 802f Abs. 6 dieses Gesetzes oder nach § 284 Abs. 7 Satz 4 der Abgabenordnung zu hinterlegende Vermögensverzeichnisse werden landesweit von einem zentralen Vollstreckungsgericht in elektronischer Form verwaltet. Die Vermögensverzeichnisse können über eine zentrale und länderübergreifende Abfrage im Internet eingesehen und abgerufen werden. Gleiches gilt für Vermögensverzeichnisse, die auf Grund einer § 284 Abs. 1 bis 7 der Abgabenordnung gleichwertigen bundesgesetzlichen oder landesgesetzlichen Regelung errichtet wurden, soweit diese Regelung die Hinterlegung anordnet. Ein Vermögensverzeichnis nach Satz 1 oder Satz 2 ist nach Ablauf von zwei Jahren seit Abgabe der Auskunft oder bei Eingang eines neuen Vermögensverzeichnisses zu löschen.
(2) Die Gerichtsvollzieher können die von den zentralen Vollstreckungsgerichten nach Absatz 1 verwalteten Vermögensverzeichnisse zu Vollstreckungszwecken abrufen. Den Gerichtsvollziehern stehen Vollstreckungsbehörden gleich, die 1. Vermögensauskünfte nach § 284 der Abgabenordnung verlangen können, 2. durch Bundesgesetz oder durch Landesgesetz dazu befugt sind, vom Schuldner Auskunft über sein
Vermögen zu verlangen, wenn diese Auskunftsbefugnis durch die Errichtung eines nach Absatz 1 zu hinterlegenden Vermögensverzeichnisses ausgeschlossen wird, oder
3. durch Bundesgesetz oder durch Landesgesetz dazu befugt sind, vom Schuldner die Abgabe einer Vermögensauskunft nach § 802c gegenüber dem Gerichtsvollzieher zu verlangen.
Zur Einsicht befugt sind ferner Vollstreckungsgerichte, Insolvenzgerichte und Registergerichte sowie Strafverfolgungsbehörden, soweit dies zur Erfüllung der ihnen obliegenden Aufgaben erforderlich ist.
(3) Die Landesregierungen bestimmen durch Rechtsverordnung, welches Gericht die Aufgaben des zentralen Vollstreckungsgerichts nach Absatz 1 wahrzunehmen hat. Sie können diese Befugnis auf die Landesjustizverwaltungen übertragen. Das zentrale Vollstreckungsgericht nach Absatz 1 kann andere Stellen mit der Datenverarbeitung beauftragen; die jeweiligen datenschutzrechtlichen Bestimmungen über die Verarbeitung personenbezogener Daten im Auftrag sind anzuwenden.
(4) Das Bundesministerium der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates die Einzelheiten des Inhalts, der Form, Aufnahme, Übermittlung, Verwaltung und Löschung der Vermögensverzeichnisse nach § 802f Abs. 5 dieses Gesetzes und nach § 284 Abs. 7 der Abgabenordnung oder gleichwertigen Regelungen im Sinne von Absatz 1 Satz 2 sowie der Einsichtnahme, insbesondere durch ein automatisiertes Abrufverfahren, zu regeln. Die Rechtsverordnung hat geeignete Regelungen zur Sicherung des Datenschutzes und der Datensicherheit vorzusehen. Insbesondere ist sicherzustellen, dass die Vermögensverzeichnisse 1. bei der Übermittlung an das zentrale Vollstreckungsgericht nach Absatz 1 sowie bei der Weitergabe an die
anderen Stellen nach Absatz 3 Satz 3 gegen unbefugte Kenntnisnahme geschützt sind, 2. unversehrt und vollständig wiedergegeben werden, 3. jederzeit ihrem Ursprung nach zugeordnet werden können und 4. nur von registrierten Nutzern abgerufen werden können und jeder Abrufvorgang protokolliert wird.
§ 802l Auskunftsrechte des Gerichtsvollziehers
(1) Kommt der Schuldner seiner Pflicht zur Abgabe der Vermögensauskunft nicht nach oder ist bei einer Vollstreckung in die dort aufgeführten Vermögensgegenstände eine vollständige Befriedigung des Gläubigers voraussichtlich nicht zu erwarten, so darf der Gerichtsvollzieher
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1. bei den Trägern der gesetzlichen Rentenversicherung den Namen, die Vornamen oder die Firma sowie die Anschriften der derzeitigen Arbeitgeber eines versicherungspflichtigen Beschäftigungsverhältnisses des Schuldners erheben;
2. das Bundeszentralamt für Steuern ersuchen, bei den Kreditinstituten die in § 93b Abs. 1 der Abgabenordnung bezeichneten Daten abzurufen (§ 93 Abs. 8 Abgabenordnung);
3. beim Kraftfahrt-Bundesamt die Fahrzeug- und Halterdaten nach § 33 Abs. 1 des Straßenverkehrsgesetzes zu einem Fahrzeug, als dessen Halter der Schuldner eingetragen ist, erheben.
Die Erhebung oder das Ersuchen ist nur zulässig, soweit dies zur Vollstreckung erforderlich ist und die zu vollstreckenden Ansprüche mindestens 500 Euro betragen; Kosten der Zwangsvollstreckung und Nebenforderungen sind bei der Berechnung nur zu berücksichtigen, wenn sie allein Gegenstand des Vollstreckungsauftrags sind.
(2) Daten, die für die Zwecke der Vollstreckung nicht erforderlich sind, hat der Gerichtsvollzieher unverzüglich zu löschen oder zu sperren. Die Löschung ist zu protokollieren.
(3) Über das Ergebnis einer Erhebung oder eines Ersuchens nach Absatz 1 setzt der Gerichtsvollzieher den Gläubiger unter Beachtung des Absatzes 2 unverzüglich und den Schuldner innerhalb von vier Wochen nach Erhalt in Kenntnis. § 802d Abs. 1 Satz 3 und Abs. 2 gilt entsprechend.
Titel 2 Zwangsvollstreckung in das bewegliche Vermögen
Untertitel 1 Allgemeine Vorschriften § 803 Pfändung
(1) Die Zwangsvollstreckung in das bewegliche Vermögen erfolgt durch Pfändung. Sie darf nicht weiter ausgedehnt werden, als es zur Befriedigung des Gläubigers und zur Deckung der Kosten der Zwangsvollstreckung erforderlich ist.
(2) Die Pfändung hat zu unterbleiben, wenn sich von der Verwertung der zu pfändenden Gegenstände ein Überschuss über die Kosten der Zwangsvollstreckung nicht erwarten lässt.
§ 804 Pfändungspfandrecht
(1) Durch die Pfändung erwirbt der Gläubiger ein Pfandrecht an dem gepfändeten Gegenstande.
(2) Das Pfandrecht gewährt dem Gläubiger im Verhältnis zu anderen Gläubigern dieselben Rechte wie ein durch Vertrag erworbenes Faustpfandrecht; es geht Pfand- und Vorzugsrechten vor, die für den Fall eines Insolvenzverfahrens den Faustpfandrechten nicht gleichgestellt sind.
(3) Das durch eine frühere Pfändung begründete Pfandrecht geht demjenigen vor, das durch eine spätere Pfändung begründet wird.
§ 805 Klage auf vorzugsweise Befriedigung
(1) Der Pfändung einer Sache kann ein Dritter, der sich nicht im Besitz der Sache befindet, auf Grund eines Pfand- oder Vorzugsrechts nicht widersprechen; er kann jedoch seinen Anspruch auf vorzugsweise Befriedigung aus dem Erlös im Wege der Klage geltend machen, ohne Rücksicht darauf, ob seine Forderung fällig ist oder nicht.
(2) Die Klage ist bei dem Vollstreckungsgericht und, wenn der Streitgegenstand zur Zuständigkeit der Amtsgerichte nicht gehört, bei dem Landgericht zu erheben, in dessen Bezirk das Vollstreckungsgericht seinen Sitz hat.
(3) Wird die Klage gegen den Gläubiger und den Schuldner gerichtet, so sind diese als Streitgenossen anzusehen.
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(4) Wird der Anspruch glaubhaft gemacht, so hat das Gericht die Hinterlegung des Erlöses anzuordnen. Die Vorschriften der §§ 769, 770 sind hierbei entsprechend anzuwenden.
§ 806 Keine Gewährleistung bei Pfandveräußerung
Wird ein Gegenstand auf Grund der Pfändung veräußert, so steht dem Erwerber wegen eines Mangels im Recht oder wegen eines Mangels der veräußerten Sache ein Anspruch auf Gewährleistung nicht zu.
§ 806a Mitteilungen und Befragung durch den Gerichtsvollzieher
(1) Erhält der Gerichtsvollzieher anlässlich der Zwangsvollstreckung durch Befragung des Schuldners oder durch Einsicht in Dokumente Kenntnis von Geldforderungen des Schuldners gegen Dritte und konnte eine Pfändung nicht bewirkt werden oder wird eine bewirkte Pfändung voraussichtlich nicht zur vollständigen Befriedigung des Gläubigers führen, so teilt er Namen und Anschriften der Drittschuldner sowie den Grund der Forderungen und für diese bestehende Sicherheiten dem Gläubiger mit.
(2) Trifft der Gerichtsvollzieher den Schuldner in der Wohnung nicht an und konnte eine Pfändung nicht bewirkt werden oder wird eine bewirkte Pfändung voraussichtlich nicht zur vollständigen Befriedigung des Gläubigers führen, so kann der Gerichtsvollzieher die zum Hausstand des Schuldners gehörenden erwachsenen Personen nach dem Arbeitgeber des Schuldners befragen. Diese sind zu einer Auskunft nicht verpflichtet und vom Gerichtsvollzieher auf die Freiwilligkeit ihrer Angaben hinzuweisen. Seine Erkenntnisse teilt der Gerichtsvollzieher dem Gläubiger mit.
§ 806b (weggefallen)
§ 807 Abnahme der Vermögensauskunft nach Pfändungsversuch
(1) Hat der Gläubiger die Vornahme der Pfändung beim Schuldner beantragt und 1. hat der Schuldner die Durchsuchung (§ 758) verweigert oder 2. ergibt der Pfändungsversuch, dass eine Pfändung voraussichtlich nicht zu einer vollständigen Befriedigung
des Gläubigers führen wird, so kann der Gerichtsvollzieher dem Schuldner die Vermögensauskunft auf Antrag des Gläubigers abweichend von § 802f sofort abnehmen. § 802f Abs. 5 und 6 findet Anwendung.
(2) Der Schuldner kann einer sofortigen Abnahme widersprechen. In diesem Fall verfährt der Gerichtsvollzieher nach § 802f; der Setzung einer Zahlungsfrist bedarf es nicht.
Untertitel 2 Zwangsvollstreckung in körperliche Sachen § 808 Pfändung beim Schuldner
(1) Die Pfändung der im Gewahrsam des Schuldners befindlichen körperlichen Sachen wird dadurch bewirkt, dass der Gerichtsvollzieher sie in Besitz nimmt.
(2) Andere Sachen als Geld, Kostbarkeiten und Wertpapiere sind im Gewahrsam des Schuldners zu belassen, sofern nicht hierdurch die Befriedigung des Gläubigers gefährdet wird. Werden die Sachen im Gewahrsam des Schuldners belassen, so ist die Wirksamkeit der Pfändung dadurch bedingt, dass durch Anlegung von Siegeln oder auf sonstige Weise die Pfändung ersichtlich gemacht ist.
(3) Der Gerichtsvollzieher hat den Schuldner von der erfolgten Pfändung in Kenntnis zu setzen.
§ 809 Pfändung beim Gläubiger oder bei Dritten
Die vorstehenden Vorschriften sind auf die Pfändung von Sachen, die sich im Gewahrsam des Gläubigers oder eines zur Herausgabe bereiten Dritten befinden, entsprechend anzuwenden.
§ 810 Pfändung ungetrennter Früchte
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(1) Früchte, die von dem Boden noch nicht getrennt sind, können gepfändet werden, solange nicht ihre Beschlagnahme im Wege der Zwangsvollstreckung in das unbewegliche Vermögen erfolgt ist. Die Pfändung darf nicht früher als einen Monat vor der gewöhnlichen Zeit der Reife erfolgen.
(2) Ein Gläubiger, der ein Recht auf Befriedigung aus dem Grundstück hat, kann der Pfändung nach Maßgabe des § 771 widersprechen, sofern nicht die Pfändung für einen im Falle der Zwangsvollstreckung in das Grundstück vorgehenden Anspruch erfolgt ist.
§ 811 Unpfändbare Sachen
(1) Folgende Sachen sind der Pfändung nicht unterworfen: 1. die dem persönlichen Gebrauch oder dem Haushalt dienenden Sachen, insbesondere Kleidungsstücke,
Wäsche, Betten, Haus- und Küchengerät, soweit der Schuldner ihrer zu einer seiner Berufstätigkeit und seiner Verschuldung angemessenen, bescheidenen Lebens- und Haushaltsführung bedarf; ferner Gartenhäuser, Wohnlauben und ähnliche Wohnzwecken dienende Einrichtungen, die der Zwangsvollstreckung in das bewegliche Vermögen unterliegen und deren der Schuldner oder seine Familie zur ständigen Unterkunft bedarf;
2. die für den Schuldner, seine Familie und seine Hausangehörigen, die ihm im Haushalt helfen, auf vier Wochen erforderlichen Nahrungs-, Feuerungs- und Beleuchtungsmittel oder, soweit für diesen Zeitraum solche Vorräte nicht vorhanden und ihre Beschaffung auf anderem Wege nicht gesichert ist, der zur Beschaffung erforderliche Geldbetrag;
3. Kleintiere in beschränkter Zahl sowie eine Milchkuh oder nach Wahl des Schuldners statt einer solchen insgesamt zwei Schweine, Ziegen oder Schafe, wenn diese Tiere für die Ernährung des Schuldners, seiner Familie oder Hausangehörigen, die ihm im Haushalt, in der Landwirtschaft oder im Gewerbe helfen, erforderlich sind; ferner die zur Fütterung und zur Streu auf vier Wochen erforderlichen Vorräte oder, soweit solche Vorräte nicht vorhanden sind und ihre Beschaffung für diesen Zeitraum auf anderem Wege nicht gesichert ist, der zu ihrer Beschaffung erforderliche Geldbetrag;
4. bei Personen, die Landwirtschaft betreiben, das zum Wirtschaftsbetrieb erforderliche Gerät und Vieh nebst dem nötigen Dünger sowie die landwirtschaftlichen Erzeugnisse, soweit sie zur Sicherung des Unterhalts des Schuldners, seiner Familie und seiner Arbeitnehmer oder zur Fortführung der Wirtschaft bis zur nächsten Ernte gleicher oder ähnlicher Erzeugnisse erforderlich sind;
4a. bei Arbeitnehmern in landwirtschaftlichen Betrieben die ihnen als Vergütung gelieferten Naturalien, soweit der Schuldner ihrer zu seinem und seiner Familie Unterhalt bedarf;
5. bei Personen, die aus ihrer körperlichen oder geistigen Arbeit oder sonstigen persönlichen Leistungen ihren Erwerb ziehen, die zur Fortsetzung dieser Erwerbstätigkeit erforderlichen Gegenstände;
6. bei den Witwen und minderjährigen Erben der unter Nummer 5 bezeichneten Personen, wenn sie die Erwerbstätigkeit für ihre Rechnung durch einen Stellvertreter fortführen, die zur Fortführung dieser Erwerbstätigkeit erforderlichen Gegenstände;
7. Dienstkleidungsstücke sowie Dienstausrüstungsgegenstände, soweit sie zum Gebrauch des Schuldners bestimmt sind, sowie bei Beamten, Geistlichen, Rechtsanwälten, Notaren, Ärzten und Hebammen die zur Ausübung des Berufes erforderlichen Gegenstände einschließlich angemessener Kleidung;
8. bei Personen, die wiederkehrende Einkünfte der in den §§ 850 bis 850b dieses Gesetzes oder der in § 54 Abs. 3 bis 5 des Ersten Buches Sozialgesetzbuch bezeichneten Art oder laufende Kindergeldleistungen beziehen, ein Geldbetrag, der dem der Pfändung nicht unterworfenen Teil der Einkünfte für die Zeit von der Pfändung bis zu dem nächsten Zahlungstermin entspricht;
9. die zum Betrieb einer Apotheke unentbehrlichen Geräte, Gefäße und Waren; 10. die Bücher, die zum Gebrauch des Schuldners und seiner Familie in der Kirche oder Schule oder einer
sonstigen Unterrichtsanstalt oder bei der häuslichen Andacht bestimmt sind; 11. die in Gebrauch genommenen Haushaltungs- und Geschäftsbücher, die Familienpapiere sowie die
Trauringe, Orden und Ehrenzeichen; 12. künstliche Gliedmaßen, Brillen und andere wegen körperlicher Gebrechen notwendige Hilfsmittel, soweit
diese Gegenstände zum Gebrauch des Schuldners und seiner Familie bestimmt sind; 13. die zur unmittelbaren Verwendung für die Bestattung bestimmten Gegenstände.
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(2) Eine in Absatz 1 Nr. 1, 4, 5 bis 7 bezeichnete Sache kann gepfändet werden, wenn der Verkäufer wegen einer durch Eigentumsvorbehalt gesicherten Geldforderung aus ihrem Verkauf vollstreckt. Die Vereinbarung des Eigentumsvorbehaltes ist durch Urkunden nachzuweisen.
§ 811a Austauschpfändung
(1) Die Pfändung einer nach § 811 Abs. 1 Nr. 1, 5 und 6 unpfändbaren Sache kann zugelassen werden, wenn der Gläubiger dem Schuldner vor der Wegnahme der Sache ein Ersatzstück, das dem geschützten Verwendungszweck genügt, oder den zur Beschaffung eines solchen Ersatzstückes erforderlichen Geldbetrag überlässt; ist dem Gläubiger die rechtzeitige Ersatzbeschaffung nicht möglich oder nicht zuzumuten, so kann die Pfändung mit der Maßgabe zugelassen werden, dass dem Schuldner der zur Ersatzbeschaffung erforderliche Geldbetrag aus dem Vollstreckungserlös überlassen wird (Austauschpfändung).
(2) Über die Zulässigkeit der Austauschpfändung entscheidet das Vollstreckungsgericht auf Antrag des Gläubigers durch Beschluss. Das Gericht soll die Austauschpfändung nur zulassen, wenn sie nach Lage der Verhältnisse angemessen ist, insbesondere wenn zu erwarten ist, dass der Vollstreckungserlös den Wert des Ersatzstückes erheblich übersteigen werde. Das Gericht setzt den Wert eines vom Gläubiger angebotenen Ersatzstückes oder den zur Ersatzbeschaffung erforderlichen Betrag fest. Bei der Austauschpfändung nach Absatz 1 Halbsatz 1 ist der festgesetzte Betrag dem Gläubiger aus dem Vollstreckungserlös zu erstatten; er gehört zu den Kosten der Zwangsvollstreckung.
(3) Der dem Schuldner überlassene Geldbetrag ist unpfändbar.
(4) Bei der Austauschpfändung nach Absatz 1 Halbsatz 2 ist die Wegnahme der gepfändeten Sache erst nach Rechtskraft des Zulassungsbeschlusses zulässig.
§ 811b Vorläufige Austauschpfändung
(1) Ohne vorgängige Entscheidung des Gerichts ist eine vorläufige Austauschpfändung zulässig, wenn eine Zulassung durch das Gericht zu erwarten ist. Der Gerichtsvollzieher soll die Austauschpfändung nur vornehmen, wenn zu erwarten ist, dass der Vollstreckungserlös den Wert des Ersatzstückes erheblich übersteigen wird.
(2) Die Pfändung ist aufzuheben, wenn der Gläubiger nicht binnen einer Frist von zwei Wochen nach Benachrichtigung von der Pfändung einen Antrag nach § 811a Abs. 2 bei dem Vollstreckungsgericht gestellt hat oder wenn ein solcher Antrag rechtskräftig zurückgewiesen ist.
(3) Bei der Benachrichtigung ist dem Gläubiger unter Hinweis auf die Antragsfrist und die Folgen ihrer Versäumung mitzuteilen, dass die Pfändung als Austauschpfändung erfolgt ist.
(4) Die Übergabe des Ersatzstückes oder des zu seiner Beschaffung erforderlichen Geldbetrages an den Schuldner und die Fortsetzung der Zwangsvollstreckung erfolgen erst nach Erlass des Beschlusses gemäß § 811a Abs. 2 auf Anweisung des Gläubigers. § 811a Abs. 4 gilt entsprechend.
§ 811c Unpfändbarkeit von Haustieren
(1) Tiere, die im häuslichen Bereich und nicht zu Erwerbszwecken gehalten werden, sind der Pfändung nicht unterworfen.
(2) Auf Antrag des Gläubigers lässt das Vollstreckungsgericht eine Pfändung wegen des hohen Wertes des Tieres zu, wenn die Unpfändbarkeit für den Gläubiger eine Härte bedeuten würde, die auch unter Würdigung der Belange des Tierschutzes und der berechtigten Interessen des Schuldners nicht zu rechtfertigen ist.
§ 811d Vorwegpfändung
(1) Ist zu erwarten, dass eine Sache demnächst pfändbar wird, so kann sie gepfändet werden, ist aber im Gewahrsam des Schuldners zu belassen. Die Vollstreckung darf erst fortgesetzt werden, wenn die Sache pfändbar geworden ist.
(2) Die Pfändung ist aufzuheben, wenn die Sache nicht binnen eines Jahres pfändbar geworden ist.
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§ 812 Pfändung von Hausrat
Gegenstände, die zum gewöhnlichen Hausrat gehören und im Haushalt des Schuldners gebraucht werden, sollen nicht gepfändet werden, wenn ohne weiteres ersichtlich ist, dass durch ihre Verwertung nur ein Erlös erzielt werden würde, der zu dem Wert außer allem Verhältnis steht.
§ 813 Schätzung
(1) Die gepfändeten Sachen sollen bei der Pfändung auf ihren gewöhnlichen Verkaufswert geschätzt werden. Die Schätzung des Wertes von Kostbarkeiten soll einem Sachverständigen übertragen werden. In anderen Fällen kann das Vollstreckungsgericht auf Antrag des Gläubigers oder des Schuldners die Schätzung durch einen Sachverständigen anordnen.
(2) Ist die Schätzung des Wertes bei der Pfändung nicht möglich, so soll sie unverzüglich nachgeholt und ihr Ergebnis nachträglich in dem Pfändungsprotokoll vermerkt werden. Werden die Akten des Gerichtsvollziehers elektronisch geführt, so ist das Ergebnis der Schätzung in einem gesonderten elektronischen Dokument zu vermerken. Das Dokument ist mit dem Pfändungsprotokoll untrennbar zu verbinden.
(3) Zur Pfändung von Früchten, die von dem Boden noch nicht getrennt sind, und zur Pfändung von Gegenständen der in § 811 Abs. 1 Nr. 4 bezeichneten Art bei Personen, die Landwirtschaft betreiben, soll ein landwirtschaftlicher Sachverständiger zugezogen werden, sofern anzunehmen ist, dass der Wert der zu pfändenden Gegenstände den Betrag von 500 Euro übersteigt.
(4) Die Landesjustizverwaltung kann bestimmen, dass auch in anderen Fällen ein Sachverständiger zugezogen werden soll.
§ 813a (weggefallen)
§ 813b (weggefallen)
§ 814 Öffentliche Versteigerung
(1) Die gepfändeten Sachen sind von dem Gerichtsvollzieher öffentlich zu versteigern; Kostbarkeiten sind vor der Versteigerung durch einen Sachverständigen abzuschätzen.*)
(2) Eine öffentliche Versteigerung kann nach Wahl des Gerichtsvollziehers 1. als Versteigerung vor Ort oder 2. als allgemein zugängliche Versteigerung im Internet über eine Versteigerungsplattform erfolgen.
(3) Die Landesregierungen bestimmen für die Versteigerung im Internet nach Absatz 2 Nummer 2 durch Rechtsverordnung 1. den Zeitpunkt, von dem an die Versteigerung zugelassen ist, 2. die Versteigerungsplattform, 3. die Zulassung zur und den Ausschluss von der Teilnahme an der Versteigerung; soweit die Zulassung zur
Teilnahme oder der Ausschluss von einer Versteigerung einen Identitätsnachweis natürlicher Personen vorsieht, ist spätestens ab dem 1. Januar 2013 auch die Nutzung des elektronischen Identitätsnachweises (§ 18 des Personalausweisgesetzes) zu diesem Zweck zu ermöglichen,
4. Beginn, Ende und Abbruch der Versteigerung, 5. die Versteigerungsbedingungen und die sonstigen rechtlichen Folgen der Versteigerung einschließlich der
Belehrung der Teilnehmer über den Gewährleistungsausschluss nach § 806, 6. die Anonymisierung der Angaben zur Person des Schuldners vor ihrer Veröffentlichung und die Möglichkeit
der Anonymisierung der Daten der Bieter, 7. das sonstige zu beachtende besondere Verfahren. Sie können die Ermächtigung durch Rechtsverordnung auf die Landesjustizverwaltungen übertragen.
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§ 815 Gepfändetes Geld
(1) Gepfändetes Geld ist dem Gläubiger abzuliefern.
(2) Wird dem Gerichtsvollzieher glaubhaft gemacht, dass an gepfändetem Geld ein die Veräußerung hinderndes Recht eines Dritten bestehe, so ist das Geld zu hinterlegen. Die Zwangsvollstreckung ist fortzusetzen, wenn nicht binnen einer Frist von zwei Wochen seit dem Tag der Pfändung eine Entscheidung des nach § 771 Abs. 1 zuständigen Gerichts über die Einstellung der Zwangsvollstreckung beigebracht wird.
(3) Die Wegnahme des Geldes durch den Gerichtsvollzieher gilt als Zahlung von Seiten des Schuldners, sofern nicht nach Absatz 2 oder nach § 720 die Hinterlegung zu erfolgen hat.
§ 816 Zeit und Ort der Versteigerung
(1) Die Versteigerung der gepfändeten Sachen darf nicht vor Ablauf einer Woche seit dem Tag der Pfändung geschehen, sofern nicht der Gläubiger und der Schuldner über eine frühere Versteigerung sich einigen oder diese erforderlich ist, um die Gefahr einer beträchtlichen Wertverringerung der zu versteigernden Sache abzuwenden oder um unverhältnismäßige Kosten einer längeren Aufbewahrung zu vermeiden.
(2) Die Versteigerung erfolgt in der Gemeinde, in der die Pfändung geschehen ist, oder an einem anderen Ort im Bezirk des Vollstreckungsgerichts, sofern nicht der Gläubiger und der Schuldner über einen dritten Ort sich einigen.
(3) Zeit und Ort der Versteigerung sind unter allgemeiner Bezeichnung der zu versteigernden Sachen öffentlich bekannt zu machen.
(4) Bei der Versteigerung gilt die Vorschrift des § 1239 Absatz 1 Satz 1 des Bürgerlichen Gesetzbuchs entsprechend; bei der Versteigerung vor Ort ist auch § 1239 Absatz 2 des Bürgerlichen Gesetzbuchs entsprechend anzuwenden.
(5) Die Absätze 2 und 3 gelten nicht bei einer Versteigerung im Internet.
§ 817 Zuschlag und Ablieferung
(1) Bei der Versteigerung vor Ort soll dem Zuschlag an den Meistbietenden ein dreimaliger Aufruf vorausgehen. Bei einer Versteigerung im Internet ist der Zuschlag der Person erteilt, die am Ende der Versteigerung das höchste, wenigstens das nach § 817a Absatz 1 Satz 1 zu erreichende Mindestgebot abgegeben hat; sie ist von dem Zuschlag zu benachrichtigen. § 156 des Bürgerlichen Gesetzbuchs gilt entsprechend.
(2) Die zugeschlagene Sache darf nur abgeliefert werden, wenn das Kaufgeld gezahlt worden ist oder bei Ablieferung gezahlt wird.
(3) Hat der Meistbietende nicht zu der in den Versteigerungsbedingungen bestimmten Zeit oder in Ermangelung einer solchen Bestimmung nicht vor dem Schluss des Versteigerungstermins die Ablieferung gegen Zahlung des Kaufgeldes verlangt, so wird die Sache anderweit versteigert. Der Meistbietende wird zu einem weiteren Gebot nicht zugelassen; er haftet für den Ausfall, auf den Mehrerlös hat er keinen Anspruch.
(4) Wird der Zuschlag dem Gläubiger erteilt, so ist dieser von der Verpflichtung zur baren Zahlung so weit befreit, als der Erlös nach Abzug der Kosten der Zwangsvollstreckung zu seiner Befriedigung zu verwenden ist, sofern nicht dem Schuldner nachgelassen ist, durch Sicherheitsleistung oder durch Hinterlegung die Vollstreckung abzuwenden. Soweit der Gläubiger von der Verpflichtung zur baren Zahlung befreit ist, gilt der Betrag als von dem Schuldner an den Gläubiger gezahlt.
§ 817a Mindestgebot
(1) Der Zuschlag darf nur auf ein Gebot erteilt werden, das mindestens die Hälfte des gewöhnlichen Verkaufswertes der Sache erreicht (Mindestgebot). Der gewöhnliche Verkaufswert und das Mindestgebot sollen bei dem Ausbieten bekannt gegeben werden.
(2) Wird der Zuschlag nicht erteilt, weil ein das Mindestgebot erreichendes Gebot nicht abgegeben ist, so bleibt das Pfandrecht des Gläubigers bestehen. Er kann jederzeit die Anberaumung eines neuen Versteigerungstermins
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oder die Anordnung anderweitiger Verwertung der gepfändeten Sache nach § 825 beantragen. Wird die anderweitige Verwertung angeordnet, so gilt Absatz 1 entsprechend.
(3) Gold- und Silbersachen dürfen auch nicht unter ihrem Gold- oder Silberwert zugeschlagen werden. Wird ein den Zuschlag gestattendes Gebot nicht abgegeben, so kann der Gerichtsvollzieher den Verkauf aus freier Hand zu dem Preise bewirken, der den Gold- oder Silberwert erreicht, jedoch nicht unter der Hälfte des gewöhnlichen Verkaufswertes.
§ 818 Einstellung der Versteigerung
Die Versteigerung wird eingestellt, sobald der Erlös zur Befriedigung des Gläubigers und zur Deckung der Kosten der Zwangsvollstreckung hinreicht.
§ 819 Wirkung des Erlösempfanges
Die Empfangnahme des Erlöses durch den Gerichtsvollzieher gilt als Zahlung von Seiten des Schuldners, sofern nicht dem Schuldner nachgelassen ist, durch Sicherheitsleistung oder durch Hinterlegung die Vollstreckung abzuwenden.
§ 820
(weggefallen)
§ 821 Verwertung von Wertpapieren
Gepfändete Wertpapiere sind, wenn sie einen Börsen- oder Marktpreis haben, von dem Gerichtsvollzieher aus freier Hand zum Tageskurs zu verkaufen und, wenn sie einen solchen Preis nicht haben, nach den allgemeinen Bestimmungen zu versteigern.
§ 822 Umschreibung von Namenspapieren
Lautet ein Wertpapier auf Namen, so kann der Gerichtsvollzieher durch das Vollstreckungsgericht ermächtigt werden, die Umschreibung auf den Namen des Käufers zu erwirken und die hierzu erforderlichen Erklärungen an Stelle des Schuldners abzugeben.
§ 823 Außer Kurs gesetzte Inhaberpapiere
Ist ein Inhaberpapier durch Einschreibung auf den Namen oder in anderer Weise außer Kurs gesetzt, so kann der Gerichtsvollzieher durch das Vollstreckungsgericht ermächtigt werden, die Wiederinkurssetzung zu erwirken und die hierzu erforderlichen Erklärungen an Stelle des Schuldners abzugeben.
§ 824 Verwertung ungetrennter Früchte
Die Versteigerung gepfändeter, von dem Boden noch nicht getrennter Früchte ist erst nach der Reife zulässig. Sie kann vor oder nach der Trennung der Früchte erfolgen; im letzteren Fall hat der Gerichtsvollzieher die Aberntung bewirken zu lassen.
§ 825 Andere Verwertungsart
(1) Auf Antrag des Gläubigers oder des Schuldners kann der Gerichtsvollzieher eine gepfändete Sache in anderer Weise oder an einem anderen Ort verwerten, als in den vorstehenden Paragraphen bestimmt ist. Über die beabsichtigte Verwertung hat der Gerichtsvollzieher den Antragsgegner zu unterrichten. Ohne Zustimmung des Antragsgegners darf er die Sache nicht vor Ablauf von zwei Wochen nach Zustellung der Unterrichtung verwerten.
(2) Die Versteigerung einer gepfändeten Sache durch eine andere Person als den Gerichtsvollzieher kann das Vollstreckungsgericht auf Antrag des Gläubigers oder des Schuldners anordnen.
§ 826 Anschlusspfändung
(1) Zur Pfändung bereits gepfändeter Sachen genügt die in das Protokoll aufzunehmende Erklärung des Gerichtsvollziehers, dass er die Sachen für seinen Auftraggeber pfände.
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(2) Ist die erste Pfändung durch einen anderen Gerichtsvollzieher bewirkt, so ist diesem eine Abschrift des Protokolls zuzustellen.
(3) Der Schuldner ist von den weiteren Pfändungen in Kenntnis zu setzen.
§ 827 Verfahren bei mehrfacher Pfändung
(1) Auf den Gerichtsvollzieher, von dem die erste Pfändung bewirkt ist, geht der Auftrag des zweiten Gläubigers kraft Gesetzes über, sofern nicht das Vollstreckungsgericht auf Antrag eines beteiligten Gläubigers oder des Schuldners anordnet, dass die Verrichtungen jenes Gerichtsvollziehers von einem anderen zu übernehmen seien. Die Versteigerung erfolgt für alle beteiligten Gläubiger.
(2) Ist der Erlös zur Deckung der Forderungen nicht ausreichend und verlangt der Gläubiger, für den die zweite oder eine spätere Pfändung erfolgt ist, ohne Zustimmung der übrigen beteiligten Gläubiger eine andere Verteilung als nach der Reihenfolge der Pfändungen, so hat der Gerichtsvollzieher die Sachlage unter Hinterlegung des Erlöses dem Vollstreckungsgericht anzuzeigen. Dieser Anzeige sind die auf das Verfahren sich beziehenden Dokumente beizufügen.
(3) In gleicher Weise ist zu verfahren, wenn die Pfändung für mehrere Gläubiger gleichzeitig bewirkt ist.
Untertitel 3 Zwangsvollstreckung in Forderungen und andere Vermögensrechte § 828 Zuständigkeit des Vollstreckungsgerichts
(1) Die gerichtlichen Handlungen, welche die Zwangsvollstreckung in Forderungen und andere Vermögensrechte zum Gegenstand haben, erfolgen durch das Vollstreckungsgericht.
(2) Als Vollstreckungsgericht ist das Amtsgericht, bei dem der Schuldner im Inland seinen allgemeinen Gerichtsstand hat, und sonst das Amtsgericht zuständig, bei dem nach § 23 gegen den Schuldner Klage erhoben werden kann.
(3) Ist das angegangene Gericht nicht zuständig, gibt es die Sache auf Antrag des Gläubigers an das zuständige Gericht ab. Die Abgabe ist nicht bindend.
§ 829 Pfändung einer Geldforderung
(1) Soll eine Geldforderung gepfändet werden, so hat das Gericht dem Drittschuldner zu verbieten, an den Schuldner zu zahlen. Zugleich hat das Gericht an den Schuldner das Gebot zu erlassen, sich jeder Verfügung über die Forderung, insbesondere ihrer Einziehung, zu enthalten. Die Pfändung mehrerer Geldforderungen gegen verschiedene Drittschuldner soll auf Antrag des Gläubigers durch einheitlichen Beschluss ausgesprochen werden, soweit dies für Zwecke der Vollstreckung geboten erscheint und kein Grund zu der Annahme besteht, dass schutzwürdige Interessen der Drittschuldner entgegenstehen.
(2) Der Gläubiger hat den Beschluss dem Drittschuldner zustellen zu lassen. Der Gerichtsvollzieher hat den Beschluss mit einer Abschrift der Zustellungsurkunde dem Schuldner sofort zuzustellen, sofern nicht eine öffentliche Zustellung erforderlich wird. An Stelle einer an den Schuldner im Ausland zu bewirkenden Zustellung erfolgt die Zustellung durch Aufgabe zur Post.
(3) Mit der Zustellung des Beschlusses an den Drittschuldner ist die Pfändung als bewirkt anzusehen.
(4) Das Bundesministerium der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates Formulare für den Antrag auf Erlass eines Pfändungs- und Überweisungsbeschlusses einzuführen. Soweit nach Satz 1 Formulare eingeführt sind, muss sich der Antragsteller ihrer bedienen. Für Verfahren bei Gerichten, die die Verfahren elektronisch bearbeiten, und für Verfahren bei Gerichten, die die Verfahren nicht elektronisch bearbeiten, können unterschiedliche Formulare eingeführt werden.
§ 829a Vereinfachter Vollstreckungsantrag bei Vollstreckungsbescheiden
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(1) Im Fall eines elektronischen Antrags zur Zwangsvollstreckung aus einem Vollstreckungsbescheid, der einer Vollstreckungsklausel nicht bedarf, ist bei Pfändung und Überweisung einer Geldforderung (§§ 829, 835) die Übermittlung der Ausfertigung des Vollstreckungsbescheides entbehrlich, wenn 1. die sich aus dem Vollstreckungsbescheid ergebende fällige Geldforderung nicht mehr als 5 000 Euro beträgt;
Kosten der Zwangsvollstreckung und Nebenforderungen sind bei der Berechnung der Forderungshöhe nur zu berücksichtigen, wenn sie allein Gegenstand des Vollstreckungsantrags sind;
2. die Vorlage anderer Urkunden als der Ausfertigung des Vollstreckungsbescheides nicht vorgeschrieben ist; 3. der Gläubiger eine Ausfertigung oder eine Abschrift des Vollstreckungsbescheides nebst
Zustellungsbescheinigung als elektronisches Dokument dem Antrag beifügt und 4. der Gläubiger versichert, dass ihm eine Ausfertigung des Vollstreckungsbescheides und eine
Zustellungsbescheinigung vorliegen und die Forderung in Höhe des Vollstreckungsantrags noch besteht. Sollen Kosten der Zwangsvollstreckung vollstreckt werden, sind zusätzlich zu den in Satz 1 Nr. 3 genannten Dokumenten eine nachprüfbare Aufstellung der Kosten und entsprechende Belege als elektronisches Dokument dem Antrag beizufügen.
(2) Hat das Gericht an dem Vorliegen einer Ausfertigung des Vollstreckungsbescheides oder der übrigen Vollstreckungsvoraussetzungen Zweifel, teilt es dies dem Gläubiger mit und führt die Zwangsvollstreckung erst durch, nachdem der Gläubiger die Ausfertigung des Vollstreckungsbescheides übermittelt oder die übrigen Vollstreckungsvoraussetzungen nachgewiesen hat.
(3) § 130a Abs. 2 bleibt unberührt.
§ 830 Pfändung einer Hypothekenforderung
(1) Zur Pfändung einer Forderung, für die eine Hypothek besteht, ist außer dem Pfändungsbeschluss die Übergabe des Hypothekenbriefes an den Gläubiger erforderlich. Wird die Übergabe im Wege der Zwangsvollstreckung erwirkt, so gilt sie als erfolgt, wenn der Gerichtsvollzieher den Brief zum Zwecke der Ablieferung an den Gläubiger wegnimmt. Ist die Erteilung des Hypothekenbriefes ausgeschlossen, so ist die Eintragung der Pfändung in das Grundbuch erforderlich; die Eintragung erfolgt auf Grund des Pfändungsbeschlusses.
(2) Wird der Pfändungsbeschluss vor der Übergabe des Hypothekenbriefes oder der Eintragung der Pfändung dem Drittschuldner zugestellt, so gilt die Pfändung diesem gegenüber mit der Zustellung als bewirkt.
(3) Diese Vorschriften sind nicht anzuwenden, soweit es sich um die Pfändung der Ansprüche auf die im § 1159 des Bürgerlichen Gesetzbuchs bezeichneten Leistungen handelt. Das Gleiche gilt bei einer Sicherungshypothek im Falle des § 1187 des Bürgerlichen Gesetzbuchs von der Pfändung der Hauptforderung.
§ 830a Pfändung einer Schiffshypothekenforderung
(1) Zur Pfändung einer Forderung, für die eine Schiffshypothek besteht, ist die Eintragung der Pfändung in das Schiffsregister oder in das Schiffsbauregister erforderlich; die Eintragung erfolgt auf Grund des Pfändungsbeschlusses.
(2) Wird der Pfändungsbeschluss vor der Eintragung der Pfändung dem Drittschuldner zugestellt, so gilt die Pfändung diesem gegenüber mit der Zustellung als bewirkt.
(3) Diese Vorschriften sind nicht anzuwenden, soweit es sich um die Pfändung der Ansprüche auf die im § 53 des Gesetzes über Rechte an eingetragenen Schiffen und Schiffsbauwerken vom 15. November 1940 (RGBl. I S. 1499) bezeichneten Leistungen handelt. Das Gleiche gilt, wenn bei einer Schiffshypothek für eine Forderung aus einer Schuldverschreibung auf den Inhaber, aus einem Wechsel oder aus einem anderen durch Indossament übertragbaren Papier die Hauptforderung gepfändet wird.
§ 831 Pfändung indossabler Papiere
Die Pfändung von Forderungen aus Wechseln und anderen Papieren, die durch Indossament übertragen werden können, wird dadurch bewirkt, dass der Gerichtsvollzieher diese Papiere in Besitz nimmt.
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§ 832 Pfändungsumfang bei fortlaufenden Bezügen
Das Pfandrecht, das durch die Pfändung einer Gehaltsforderung oder einer ähnlichen in fortlaufenden Bezügen bestehenden Forderung erworben wird, erstreckt sich auch auf die nach der Pfändung fällig werdenden Beträge.
§ 833 Pfändungsumfang bei Arbeits- und Diensteinkommen
(1) Durch die Pfändung eines Diensteinkommens wird auch das Einkommen betroffen, das der Schuldner infolge der Versetzung in ein anderes Amt, der Übertragung eines neuen Amtes oder einer Gehaltserhöhung zu beziehen hat. Diese Vorschrift ist auf den Fall der Änderung des Dienstherrn nicht anzuwenden.
(2) Endet das Arbeits- oder Dienstverhältnis und begründen Schuldner und Drittschuldner innerhalb von neun Monaten ein solches neu, so erstreckt sich die Pfändung auf die Forderung aus dem neuen Arbeits- oder Dienstverhältnis.
§ 833a Pfändungsumfang bei Kontoguthaben
Die Pfändung des Guthabens eines Kontos bei einem Kreditinstitut umfasst das am Tag der Zustellung des Pfändungsbeschlusses bei dem Kreditinstitut bestehende Guthaben sowie die Tagesguthaben der auf die Pfändung folgenden Tage.
§ 834 Keine Anhörung des Schuldners
Vor der Pfändung ist der Schuldner über das Pfändungsgesuch nicht zu hören.
§ 835 Überweisung einer Geldforderung
(1) Die gepfändete Geldforderung ist dem Gläubiger nach seiner Wahl zur Einziehung oder an Zahlungs statt zum Nennwert zu überweisen.
(2) Im letzteren Fall geht die Forderung auf den Gläubiger mit der Wirkung über, dass er, soweit die Forderung besteht, wegen seiner Forderung an den Schuldner als befriedigt anzusehen ist.
(3) Die Vorschriften des § 829 Abs. 2, 3 sind auf die Überweisung entsprechend anzuwenden. Wird ein bei einem Kreditinstitut gepfändetes Guthaben eines Schuldners, der eine natürliche Person ist, dem Gläubiger überwiesen, so darf erst vier Wochen nach der Zustellung des Überweisungsbeschlusses an den Drittschuldner aus dem Guthaben an den Gläubiger geleistet oder der Betrag hinterlegt werden; ist künftiges Guthaben gepfändet worden, ordnet das Vollstreckungsgericht auf Antrag zusätzlich an, dass erst vier Wochen nach der Gutschrift von eingehenden Zahlungen an den Gläubiger geleistet oder der Betrag hinterlegt werden darf.
(4) Wird künftiges Guthaben auf einem Pfändungsschutzkonto im Sinne von § 850k Absatz 7 gepfändet und dem Gläubiger überwiesen, darf der Drittschuldner erst nach Ablauf des nächsten auf die jeweilige Gutschrift von eingehenden Zahlungen folgenden Kalendermonats an den Gläubiger leisten oder den Betrag hinterlegen. Das Vollstreckungsgericht kann auf Antrag des Gläubigers eine abweichende Anordnung treffen, wenn die Regelung des Satzes 1 unter voller Würdigung des Schutzbedürfnisses des Schuldners für den Gläubiger eine unzumutbare Härte verursacht.
(5) Wenn nicht wiederkehrend zahlbare Vergütungen eines Schuldners, der eine natürliche Person ist, für persönlich geleistete Arbeiten oder Dienste oder sonstige Einkünfte, die kein Arbeitseinkommen sind, dem Gläubiger überwiesen werden, so darf der Drittschuldner erst vier Wochen nach der Zustellung des Überweisungsbeschlusses an den Gläubiger leisten oder den Betrag hinterlegen.
§ 836 Wirkung der Überweisung
(1) Die Überweisung ersetzt die förmlichen Erklärungen des Schuldners, von denen nach den Vorschriften des bürgerlichen Rechts die Berechtigung zur Einziehung der Forderung abhängig ist.
(2) Der Überweisungsbeschluss gilt, auch wenn er mit Unrecht erlassen ist, zugunsten des Drittschuldners dem Schuldner gegenüber so lange als rechtsbeständig, bis er aufgehoben wird und die Aufhebung zur Kenntnis des Drittschuldners gelangt.
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(3) Der Schuldner ist verpflichtet, dem Gläubiger die zur Geltendmachung der Forderung nötige Auskunft zu erteilen und ihm die über die Forderung vorhandenen Urkunden herauszugeben. Erteilt der Schuldner die Auskunft nicht, so ist er auf Antrag des Gläubigers verpflichtet, sie zu Protokoll zu geben und seine Angaben an Eides statt zu versichern. Der gemäß § 802e zuständige Gerichtsvollzieher lädt den Schuldner zur Abgabe der Auskunft und eidesstattlichen Versicherung. Die Vorschriften des § 802f Abs. 4 und der §§ 802g bis 802i, 802j Abs. 1 und 2 gelten entsprechend. Die Herausgabe der Urkunden kann von dem Gläubiger im Wege der Zwangsvollstreckung erwirkt werden.
§ 837 Überweisung einer Hypothekenforderung
(1) Zur Überweisung einer gepfändeten Forderung, für die eine Hypothek besteht, genügt die Aushändigung des Überweisungsbeschlusses an den Gläubiger. Ist die Erteilung des Hypothekenbriefes ausgeschlossen, so ist zur Überweisung an Zahlungs statt die Eintragung der Überweisung in das Grundbuch erforderlich; die Eintragung erfolgt auf Grund des Überweisungsbeschlusses.
(2) Diese Vorschriften sind nicht anzuwenden, soweit es sich um die Überweisung der Ansprüche auf die im § 1159 des Bürgerlichen Gesetzbuchs bezeichneten Leistungen handelt. Das Gleiche gilt bei einer Sicherungshypothek im Falle des § 1187 des Bürgerlichen Gesetzbuchs von der Überweisung der Hauptforderung.
(3) Bei einer Sicherungshypothek der im § 1190 des Bürgerlichen Gesetzbuchs bezeichneten Art kann die Hauptforderung nach den allgemeinen Vorschriften gepfändet und überwiesen werden, wenn der Gläubiger die Überweisung der Forderung ohne die Hypothek an Zahlungs statt beantragt.
§ 837a Überweisung einer Schiffshypothekenforderung
(1) Zur Überweisung einer gepfändeten Forderung, für die eine Schiffshypothek besteht, genügt, wenn die Forderung zur Einziehung überwiesen wird, die Aushändigung des Überweisungsbeschlusses an den Gläubiger. Zur Überweisung an Zahlungs statt ist die Eintragung der Überweisung in das Schiffsregister oder in das Schiffsbauregister erforderlich; die Eintragung erfolgt auf Grund des Überweisungsbeschlusses.
(2) Diese Vorschriften sind nicht anzuwenden, soweit es sich um die Überweisung der Ansprüche auf die im § 53 des Gesetzes über Rechte an eingetragenen Schiffen und Schiffsbauwerken vom 15. November 1940 (RGBl. I S. 1499) bezeichneten Leistungen handelt. Das Gleiche gilt, wenn bei einer Schiffshypothek für eine Forderung aus einer Schuldverschreibung auf den Inhaber, aus einem Wechsel oder aus einem anderen durch Indossament übertragbaren Papier die Hauptforderung überwiesen wird.
(3) Bei einer Schiffshypothek für einen Höchstbetrag (§ 75 des im Absatz 2 genannten Gesetzes) gilt § 837 Abs. 3 entsprechend.
§ 838 Einrede des Schuldners bei Faustpfand
Wird eine durch ein Pfandrecht an einer beweglichen Sache gesicherte Forderung überwiesen, so kann der Schuldner die Herausgabe des Pfandes an den Gläubiger verweigern, bis ihm Sicherheit für die Haftung geleistet wird, die für ihn aus einer Verletzung der dem Gläubiger dem Verpfänder gegenüber obliegenden Verpflichtungen entstehen kann.
§ 839 Überweisung bei Abwendungsbefugnis
Darf der Schuldner nach § 711 Satz 1, § 712 Abs. 1 Satz 1 die Vollstreckung durch Sicherheitsleistung oder Hinterlegung abwenden, so findet die Überweisung gepfändeter Geldforderungen nur zur Einziehung und nur mit der Wirkung statt, dass der Drittschuldner den Schuldbetrag zu hinterlegen hat.
§ 840 Erklärungspflicht des Drittschuldners
(1) Auf Verlangen des Gläubigers hat der Drittschuldner binnen zwei Wochen, von der Zustellung des Pfändungsbeschlusses an gerechnet, dem Gläubiger zu erklären: 1. ob und inwieweit er die Forderung als begründet anerkenne und Zahlung zu leisten bereit sei; 2. ob und welche Ansprüche andere Personen an die Forderung machen;
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3. ob und wegen welcher Ansprüche die Forderung bereits für andere Gläubiger gepfändet sei; 4. ob innerhalb der letzten zwölf Monate im Hinblick auf das Konto, dessen Guthaben gepfändet worden ist,
nach § 850l die Unpfändbarkeit des Guthabens angeordnet worden ist, und 5. ob es sich bei dem Konto, dessen Guthaben gepfändet worden ist, um ein Pfändungsschutzkonto im Sinne
von § 850k Abs. 7 handelt.
(2) Die Aufforderung zur Abgabe dieser Erklärungen muss in die Zustellungsurkunde aufgenommen werden. Der Drittschuldner haftet dem Gläubiger für den aus der Nichterfüllung seiner Verpflichtung entstehenden Schaden.
(3) Die Erklärungen des Drittschuldners können bei Zustellung des Pfändungsbeschlusses oder innerhalb der im ersten Absatz bestimmten Frist an den Gerichtsvollzieher erfolgen. Im ersteren Fall sind sie in die Zustellungsurkunde aufzunehmen und von dem Drittschuldner zu unterschreiben.
§ 841 Pflicht zur Streitverkündung
Der Gläubiger, der die Forderung einklagt, ist verpflichtet, dem Schuldner gerichtlich den Streit zu verkünden, sofern nicht eine Zustellung im Ausland oder eine öffentliche Zustellung erforderlich wird.
§ 842 Schadenersatz bei verzögerter Beitreibung
Der Gläubiger, der die Beitreibung einer ihm zur Einziehung überwiesenen Forderung verzögert, haftet dem Schuldner für den daraus entstehenden Schaden.
§ 843 Verzicht des Pfandgläubigers
Der Gläubiger kann auf die durch Pfändung und Überweisung zur Einziehung erworbenen Rechte unbeschadet seines Anspruchs verzichten. Die Verzichtleistung erfolgt durch eine dem Schuldner zuzustellende Erklärung. Die Erklärung ist auch dem Drittschuldner zuzustellen.
§ 844 Andere Verwertungsart
(1) Ist die gepfändete Forderung bedingt oder betagt oder ist ihre Einziehung wegen der Abhängigkeit von einer Gegenleistung oder aus anderen Gründen mit Schwierigkeiten verbunden, so kann das Gericht auf Antrag an Stelle der Überweisung eine andere Art der Verwertung anordnen.
(2) Vor dem Beschluss, durch welchen dem Antrag stattgegeben wird, ist der Gegner zu hören, sofern nicht eine Zustellung im Ausland oder eine öffentliche Zustellung erforderlich wird.
§ 845 Vorpfändung
(1) Schon vor der Pfändung kann der Gläubiger auf Grund eines vollstreckbaren Schuldtitels durch den Gerichtsvollzieher dem Drittschuldner und dem Schuldner die Benachrichtigung, dass die Pfändung bevorstehe, zustellen lassen mit der Aufforderung an den Drittschuldner, nicht an den Schuldner zu zahlen, und mit der Aufforderung an den Schuldner, sich jeder Verfügung über die Forderung, insbesondere ihrer Einziehung, zu enthalten. Der Gerichtsvollzieher hat die Benachrichtigung mit den Aufforderungen selbst anzufertigen, wenn er von dem Gläubiger hierzu ausdrücklich beauftragt worden ist. An Stelle einer an den Schuldner im Ausland zu bewirkenden Zustellung erfolgt die Zustellung durch Aufgabe zur Post.
(2) Die Benachrichtigung an den Drittschuldner hat die Wirkung eines Arrestes (§ 930), sofern die Pfändung der Forderung innerhalb eines Monats bewirkt wird. Die Frist beginnt mit dem Tag, an dem die Benachrichtigung zugestellt ist.
§ 846 Zwangsvollstreckung in Herausgabeansprüche
Die Zwangsvollstreckung in Ansprüche, welche die Herausgabe oder Leistung körperlicher Sachen zum Gegenstand haben, erfolgt nach den §§ 829 bis 845 unter Berücksichtigung der nachstehenden Vorschriften.
§ 847 Herausgabeanspruch auf eine bewegliche Sache
(1) Bei der Pfändung eines Anspruchs, der eine bewegliche körperliche Sache betrifft, ist anzuordnen, dass die Sache an einen vom Gläubiger zu beauftragenden Gerichtsvollzieher herauszugeben sei.
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(2) Auf die Verwertung der Sache sind die Vorschriften über die Verwertung gepfändeter Sachen anzuwenden.
§ 847a Herausgabeanspruch auf ein Schiff
(1) Bei der Pfändung eines Anspruchs, der ein eingetragenes Schiff betrifft, ist anzuordnen, dass das Schiff an einen vom Vollstreckungsgericht zu bestellenden Treuhänder herauszugeben ist.
(2) Ist der Anspruch auf Übertragung des Eigentums gerichtet, so vertritt der Treuhänder den Schuldner bei der Übertragung des Eigentums. Mit dem Übergang des Eigentums auf den Schuldner erlangt der Gläubiger eine Schiffshypothek für seine Forderung. Der Treuhänder hat die Eintragung der Schiffshypothek in das Schiffsregister zu bewilligen.
(3) Die Zwangsvollstreckung in das Schiff wird nach den für die Zwangsvollstreckung in unbewegliche Sachen geltenden Vorschriften bewirkt.
(4) Die vorstehenden Vorschriften gelten entsprechend, wenn der Anspruch ein Schiffsbauwerk betrifft, das im Schiffsbauregister eingetragen ist oder in dieses Register eingetragen werden kann.
§ 848 Herausgabeanspruch auf eine unbewegliche Sache
(1) Bei Pfändung eines Anspruchs, der eine unbewegliche Sache betrifft, ist anzuordnen, dass die Sache an einen auf Antrag des Gläubigers vom Amtsgericht der belegenen Sache zu bestellenden Sequester herauszugeben sei.
(2) Ist der Anspruch auf Übertragung des Eigentums gerichtet, so hat die Auflassung an den Sequester als Vertreter des Schuldners zu erfolgen. Mit dem Übergang des Eigentums auf den Schuldner erlangt der Gläubiger eine Sicherungshypothek für seine Forderung. Der Sequester hat die Eintragung der Sicherungshypothek zu bewilligen.
(3) Die Zwangsvollstreckung in die herausgegebene Sache wird nach den für die Zwangsvollstreckung in unbewegliche Sachen geltenden Vorschriften bewirkt.
§ 849 Keine Überweisung an Zahlungs statt
Eine Überweisung der im § 846 bezeichneten Ansprüche an Zahlungs statt ist unzulässig.
§ 850 Pfändungsschutz für Arbeitseinkommen
(1) Arbeitseinkommen, das in Geld zahlbar ist, kann nur nach Maßgabe der §§ 850a bis 850i gepfändet werden.
(2) Arbeitseinkommen im Sinne dieser Vorschrift sind die Dienst- und Versorgungsbezüge der Beamten, Arbeits- und Dienstlöhne, Ruhegelder und ähnliche nach dem einstweiligen oder dauernden Ausscheiden aus dem Dienst- oder Arbeitsverhältnis gewährte fortlaufende Einkünfte, ferner Hinterbliebenenbezüge sowie sonstige Vergütungen für Dienstleistungen aller Art, die die Erwerbstätigkeit des Schuldners vollständig oder zu einem wesentlichen Teil in Anspruch nehmen.
(3) Arbeitseinkommen sind auch die folgenden Bezüge, soweit sie in Geld zahlbar sind: a) Bezüge, die ein Arbeitnehmer zum Ausgleich für Wettbewerbsbeschränkungen für die Zeit nach Beendigung
seines Dienstverhältnisses beanspruchen kann; b) Renten, die auf Grund von Versicherungsverträgen gewährt werden, wenn diese Verträge zur Versorgung
des Versicherungsnehmers oder seiner unterhaltsberechtigten Angehörigen eingegangen sind.
(4) Die Pfändung des in Geld zahlbaren Arbeitseinkommens erfasst alle Vergütungen, die dem Schuldner aus der Arbeits- oder Dienstleistung zustehen, ohne Rücksicht auf ihre Benennung oder Berechnungsart.
§ 850a Unpfändbare Bezüge
Unpfändbar sind 1. zur Hälfte die für die Leistung von Mehrarbeitsstunden gezahlten Teile des Arbeitseinkommens;
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2. die für die Dauer eines Urlaubs über das Arbeitseinkommen hinaus gewährten Bezüge, Zuwendungen aus Anlass eines besonderen Betriebsereignisses und Treugelder, soweit sie den Rahmen des Üblichen nicht übersteigen;
3. Aufwandsentschädigungen, Auslösungsgelder und sonstige soziale Zulagen für auswärtige Beschäftigungen, das Entgelt für selbstgestelltes Arbeitsmaterial, Gefahrenzulagen sowie Schmutz- und Erschwerniszulagen, soweit diese Bezüge den Rahmen des Üblichen nicht übersteigen;
4. Weihnachtsvergütungen bis zum Betrag der Hälfte des monatlichen Arbeitseinkommens, höchstens aber bis zum Betrag von 500 Euro;
5. Heirats- und Geburtsbeihilfen, sofern die Vollstreckung wegen anderer als der aus Anlass der Heirat oder der Geburt entstandenen Ansprüche betrieben wird;
6. Erziehungsgelder, Studienbeihilfen und ähnliche Bezüge; 7. Sterbe- und Gnadenbezüge aus Arbeits- oder Dienstverhältnissen; 8. Blindenzulagen.
§ 850b Bedingt pfändbare Bezüge
(1) Unpfändbar sind ferner 1. Renten, die wegen einer Verletzung des Körpers oder der Gesundheit zu entrichten sind; 2. Unterhaltsrenten, die auf gesetzlicher Vorschrift beruhen, sowie die wegen Entziehung einer solchen
Forderung zu entrichtenden Renten; 3. fortlaufende Einkünfte, die ein Schuldner aus Stiftungen oder sonst auf Grund der Fürsorge und Freigebigkeit
eines Dritten oder auf Grund eines Altenteils oder Auszugsvertrags bezieht; 4. Bezüge aus Witwen-, Waisen-, Hilfs- und Krankenkassen, die ausschließlich oder zu einem wesentlichen Teil
zu Unterstützungszwecken gewährt werden, ferner Ansprüche aus Lebensversicherungen, die nur auf den Todesfall des Versicherungsnehmers abgeschlossen sind, wenn die Versicherungssumme 3.579 Euro nicht übersteigt.
(2) Diese Bezüge können nach den für Arbeitseinkommen geltenden Vorschriften gepfändet werden, wenn die Vollstreckung in das sonstige bewegliche Vermögen des Schuldners zu einer vollständigen Befriedigung des Gläubigers nicht geführt hat oder voraussichtlich nicht führen wird und wenn nach den Umständen des Falles, insbesondere nach der Art des beizutreibenden Anspruchs und der Höhe der Bezüge, die Pfändung der Billigkeit entspricht.
(3) Das Vollstreckungsgericht soll vor seiner Entscheidung die Beteiligten hören.
§ 850c Pfändungsgrenzen für Arbeitseinkommen
(1) Arbeitseinkommen ist unpfändbar, wenn es, je nach dem Zeitraum, für den es gezahlt wird, nicht mehr als 930 Euro 1) monatlich,
217,50 Euro 2) wöchentlich oder 43,50 Euro 3) täglich,
beträgt. Gewährt der Schuldner auf Grund einer gesetzlichen Verpflichtung seinem Ehegatten, einem früheren Ehegatten, seinem Lebenspartner, einem früheren Lebenspartner oder einem Verwandten oder nach §§ 1615l, 1615n des Bürgerlichen Gesetzbuchs einem Elternteil Unterhalt, so erhöht sich der Betrag, bis zu dessen Höhe Arbeitseinkommen unpfändbar ist, auf bis zu
2.060 Euro 4) monatlich, 478,50 Euro 5) wöchentlich oder
96,50 Euro 6) täglich, und zwar um
350 Euro 7) monatlich, 81 Euro 8) wöchentlich oder
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17 Euro 9) täglich,
für die erste Person, der Unterhalt gewährt wird, und um je 195 Euro 10) monatlich,
45 Euro 11) wöchentlich oder 9 Euro 12) täglich
für die zweite bis fünfte Person.
(2) Übersteigt das Arbeitseinkommen den Betrag, bis zu dessen Höhe es je nach der Zahl der Personen, denen der Schuldner Unterhalt gewährt, nach Absatz 1 unpfändbar ist, so ist es hinsichtlich des überschießenden Betrages zu einem Teil unpfändbar, und zwar in Höhe von drei Zehnteln, wenn der Schuldner keiner der in Absatz 1 genannten Personen Unterhalt gewährt, zwei weiteren Zehnteln für die erste Person, der Unterhalt gewährt wird, und je einem weiteren Zehntel für die zweite bis fünfte Person. Der Teil des Arbeitseinkommens, der 2.851 Euro 13) monatlich (658 Euro 14) wöchentlich, 131,58 Euro 15) täglich) übersteigt, bleibt bei der Berechnung des unpfändbaren Betrages unberücksichtigt.
(2a) Die unpfändbaren Beträge nach Absatz 1 und Absatz 2 Satz 2 ändern sich jeweils zum 1. Juli eines jeden zweiten Jahres, erstmalig zum 1. Juli 2003, entsprechend der im Vergleich zum jeweiligen Vorjahreszeitraum sich ergebenden prozentualen Entwicklung des Grundfreibetrages nach § 32a Abs. 1 Nr. 1 des Einkommensteuergesetzes; der Berechnung ist die am 1. Januar des jeweiligen Jahres geltende Fassung des § 32a Abs. 1 Nr. 1 des Einkommensteuergesetzes zugrunde zu legen. Das Bundesministerium der Justiz gibt die maßgebenden Beträge rechtzeitig im Bundesgesetzblatt bekannt.
(3) Bei der Berechnung des nach Absatz 2 pfändbaren Teils des Arbeitseinkommens ist das Arbeitseinkommen, gegebenenfalls nach Abzug des nach Absatz 2 Satz 2 pfändbaren Betrages, wie aus der Tabelle ersichtlich, die diesem Gesetz als Anlage beigefügt ist, nach unten abzurunden, und zwar bei Auszahlung für Monate auf einen durch 10 Euro, bei Auszahlung für Wochen auf einen durch 2,50 Euro oder bei Auszahlung für Tage auf einen durch 50 Cent teilbaren Betrag. Im Pfändungsbeschluss genügt die Bezugnahme auf die Tabelle.
(4) Hat eine Person, welcher der Schuldner auf Grund gesetzlicher Verpflichtung Unterhalt gewährt, eigene Einkünfte, so kann das Vollstreckungsgericht auf Antrag des Gläubigers nach billigem Ermessen bestimmen, dass diese Person bei der Berechnung des unpfändbaren Teils des Arbeitseinkommens ganz oder teilweise unberücksichtigt bleibt; soll die Person nur teilweise berücksichtigt werden, so ist Absatz 3 Satz 2 nicht anzuwenden. ----- Die unpfändbaren Beträge nach Absatz 1 und Absatz 2 Satz 2 sind durch Bekanntmachung zu § 850c der Zivilprozessordnung (Pfändungsfreigrenzenbekanntmachung 2005) vom 25. Februar 2005 (BGBl. I S. 493) geändert worden:
1) 985,15 Euro; 2) 226,72 Euro; 3) 45,34 Euro; 4) 2.182,15 Euro; 5) 502,20 Euro; 6) 100,44 Euro; 7) 370,76 Euro; 8) 85,32 Euro; 9) 17,06 Euro; 10) 206,56 Euro; 11) 47,54 Euro; 12) 9,51 Euro; 13) 3.020,06 Euro; 14) 695,03 Euro; 15) 139,01 Euro.
Fußnote
(+++ Hinweis: Die unpfändbaren Beträge nach Absatz 1 und Absatz 2 Satz 2 für den Zeitraum vom 1.7.2007 bis 30.6.2009 vgl. Bek. v. 22.1.2007 I 64 (Pfändungsfreigrenzenbekanntmachung 2007), für den Zeitraum vom 1.7.2009 bis 30.6.2011 vgl. Bek. v. 15.5.2009 I 1141 (Pfändungsfreigrenzenbekanntmachung 2009), für die Zeit ab 1.7.2011 vgl. Bek. v. 9.5.2011 I 825 (Pfändungsfreigrenzenbekanntmachung 2011), für die Zeit ab 1.7.2013 vgl. Bek. v. 26.3.2013 I 710 (Pfändungsfreigrenzenbekanntmachung 2013) +++)
§ 850d Pfändbarkeit bei Unterhaltsansprüchen
(1) Wegen der Unterhaltsansprüche, die kraft Gesetzes einem Verwandten, dem Ehegatten, einem früheren Ehegatten, dem Lebenspartner, einem früheren Lebenspartner oder nach §§ 1615l, 1615n des Bürgerlichen Gesetzbuchs einem Elternteil zustehen, sind das Arbeitseinkommen und die in § 850a Nr. 1, 2 und 4 genannten Bezüge ohne die in § 850c bezeichneten Beschränkungen pfändbar. Dem Schuldner ist jedoch so viel zu belassen, als er für seinen notwendigen Unterhalt und zur Erfüllung seiner laufenden gesetzlichen
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Unterhaltspflichten gegenüber den dem Gläubiger vorgehenden Berechtigten oder zur gleichmäßigen Befriedigung der dem Gläubiger gleichstehenden Berechtigten bedarf; von den in § 850a Nr. 1, 2 und 4 genannten Bezügen hat ihm mindestens die Hälfte des nach § 850a unpfändbaren Betrages zu verbleiben. Der dem Schuldner hiernach verbleibende Teil seines Arbeitseinkommens darf den Betrag nicht übersteigen, der ihm nach den Vorschriften des § 850c gegenüber nicht bevorrechtigten Gläubigern zu verbleiben hätte. Für die Pfändung wegen der Rückstände, die länger als ein Jahr vor dem Antrag auf Erlass des Pfändungsbeschlusses fällig geworden sind, gelten die Vorschriften dieses Absatzes insoweit nicht, als nach Lage der Verhältnisse nicht anzunehmen ist, dass der Schuldner sich seiner Zahlungspflicht absichtlich entzogen hat.
(2) Mehrere nach Absatz 1 Berechtigte sind mit ihren Ansprüchen in der Reihenfolge nach § 1609 des Bürgerlichen Gesetzbuchs und § 16 des Lebenspartnerschaftsgesetzes zu berücksichtigen, wobei mehrere gleich nahe Berechtigte untereinander den gleichen Rang haben.
(3) Bei der Vollstreckung wegen der in Absatz 1 bezeichneten Ansprüche sowie wegen der aus Anlass einer Verletzung des Körpers oder der Gesundheit zu zahlenden Renten kann zugleich mit der Pfändung wegen fälliger Ansprüche auch künftig fällig werdendes Arbeitseinkommen wegen der dann jeweils fällig werdenden Ansprüche gepfändet und überwiesen werden.
§ 850e Berechnung des pfändbaren Arbeitseinkommens
Für die Berechnung des pfändbaren Arbeitseinkommens gilt Folgendes: 1. Nicht mitzurechnen sind die nach § 850a der Pfändung entzogenen Bezüge, ferner Beträge, die unmittelbar
auf Grund steuerrechtlicher oder sozialrechtlicher Vorschriften zur Erfüllung gesetzlicher Verpflichtungen des Schuldners abzuführen sind. Diesen Beträgen stehen gleich die auf den Auszahlungszeitraum entfallenden Beträge, die der Schuldner a) nach den Vorschriften der Sozialversicherungsgesetze zur Weiterversicherung entrichtet oder b) an eine Ersatzkasse oder an ein Unternehmen der privaten Krankenversicherung leistet, soweit sie den
Rahmen des Üblichen nicht übersteigen.
2. Mehrere Arbeitseinkommen sind auf Antrag vom Vollstreckungsgericht bei der Pfändung zusammenzurechnen. Der unpfändbare Grundbetrag ist in erster Linie dem Arbeitseinkommen zu entnehmen, das die wesentliche Grundlage der Lebenshaltung des Schuldners bildet.
2a. Mit Arbeitseinkommen sind auf Antrag auch Ansprüche auf laufende Geldleistungen nach dem Sozialgesetzbuch zusammenzurechnen, soweit diese der Pfändung unterworfen sind. Der unpfändbare Grundbetrag ist, soweit die Pfändung nicht wegen gesetzlicher Unterhaltsansprüche erfolgt, in erster Linie den laufenden Geldleistungen nach dem Sozialgesetzbuch zu entnehmen. Ansprüche auf Geldleistungen für Kinder dürfen mit Arbeitseinkommen nur zusammengerechnet werden, soweit sie nach § 76 des Einkommensteuergesetzes oder nach § 54 Abs. 5 des Ersten Buches Sozialgesetzbuch gepfändet werden können.
3. Erhält der Schuldner neben seinem in Geld zahlbaren Einkommen auch Naturalleistungen, so sind Geld- und Naturalleistungen zusammenzurechnen. In diesem Fall ist der in Geld zahlbare Betrag insoweit pfändbar, als der nach § 850c unpfändbare Teil des Gesamteinkommens durch den Wert der dem Schuldner verbleibenden Naturalleistungen gedeckt ist.
4. Trifft eine Pfändung, eine Abtretung oder eine sonstige Verfügung wegen eines der in § 850d bezeichneten Ansprüche mit einer Pfändung wegen eines sonstigen Anspruchs zusammen, so sind auf die Unterhaltsansprüche zunächst die gemäß § 850d der Pfändung in erweitertem Umfang unterliegenden Teile des Arbeitseinkommens zu verrechnen. Die Verrechnung nimmt auf Antrag eines Beteiligten das Vollstreckungsgericht vor. Der Drittschuldner kann, solange ihm eine Entscheidung des Vollstreckungsgerichts nicht zugestellt ist, nach dem Inhalt der ihm bekannten Pfändungsbeschlüsse, Abtretungen und sonstigen Verfügungen mit befreiender Wirkung leisten.
§ 850f Änderung des unpfändbaren Betrages
(1) Das Vollstreckungsgericht kann dem Schuldner auf Antrag von dem nach den Bestimmungen der §§ 850c, 850d und 850i pfändbaren Teil seines Arbeitseinkommens einen Teil belassen, wenn a) der Schuldner nachweist, dass bei Anwendung der Pfändungsfreigrenzen entsprechend der Anlage zu
diesem Gesetz (zu § 850c) der notwendige Lebensunterhalt im Sinne des Dritten und Elften Kapitels des
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Zwölften Buches Sozialgesetzbuch oder nach Kapitel 3 Abschnitt 2 des Zweiten Buches Sozialgesetzbuch für sich und für die Personen, denen er Unterhalt zu gewähren hat, nicht gedeckt ist,
b) besondere Bedürfnisse des Schuldners aus persönlichen oder beruflichen Gründen oder c) der besondere Umfang der gesetzlichen Unterhaltspflichten des Schuldners, insbesondere die Zahl der
Unterhaltsberechtigten, dies erfordern und überwiegende Belange des Gläubigers nicht entgegenstehen.
(2) Wird die Zwangsvollstreckung wegen einer Forderung aus einer vorsätzlich begangenen unerlaubten Handlung betrieben, so kann das Vollstreckungsgericht auf Antrag des Gläubigers den pfändbaren Teil des Arbeitseinkommens ohne Rücksicht auf die in § 850c vorgesehenen Beschränkungen bestimmen; dem Schuldner ist jedoch so viel zu belassen, wie er für seinen notwendigen Unterhalt und zur Erfüllung seiner laufenden gesetzlichen Unterhaltspflichten bedarf.
(3) Wird die Zwangsvollstreckung wegen anderer als der in Absatz 2 und in § 850d bezeichneten Forderungen betrieben, so kann das Vollstreckungsgericht in den Fällen, in denen sich das Arbeitseinkommen des Schuldners auf mehr als monatlich 2 815 Euro 1) (wöchentlich 641 Euro 2), täglich 123,50 Euro 3)) beläuft, über die Beträge hinaus, die nach § 850c pfändbar wären, auf Antrag des Gläubigers die Pfändbarkeit unter Berücksichtigung der Belange des Gläubigers und des Schuldners nach freiem Ermessen festsetzen. Dem Schuldner ist jedoch mindestens so viel zu belassen, wie sich bei einem Arbeitseinkommen von monatlich 2 815 Euro 1) (wöchentlich 641 Euro 2), täglich 123,50 Euro 3)) aus § 850c ergeben würde. Die Beträge nach den Sätzen 1 und 2 werden entsprechend der in § 850c Abs. 2a getroffenen Regelung jeweils zum 1. Juli eines jeden zweiten Jahres, erstmalig zum 1. Juli 2003, geändert. Das Bundesministerium der Justiz gibt die maßgebenden Beträge rechtzeitig im Bundesgesetzblatt bekannt. ----- * Die Beträge haben sich infolge der Bekanntmachung zu § 850c der Zivilprozessordnung (Pfändungsfreigrenzenbekanntmachung 2005) vom 25. Februar 2005
(BGBl. I S. 493) geändert:
1) 2 985 Euro; 2) 678,70 Euro; 3) 131,25 Euro.
Fußnote
(+++ Hinweis: Beträge nach § 850f Abs. 3 Satz 1 und 2 geändert infolge Bekanntmachung zu § 850c ZPO (Bek. v. 25.2.2005 I 493) (Pfändungsfreigrenzenbekanntmachung 2005) und Bekanntmachung zu § 850c ZPO (Bek. v. 9.5.2011 I 825) (Pfändungsfreigrenzenbekanntmachung 2011) +++)
§ 850g Änderung der Unpfändbarkeitsvoraussetzungen
Ändern sich die Voraussetzungen für die Bemessung des unpfändbaren Teils des Arbeitseinkommens, so hat das Vollstreckungsgericht auf Antrag des Schuldners oder des Gläubigers den Pfändungsbeschluss entsprechend zu ändern. Antragsberechtigt ist auch ein Dritter, dem der Schuldner kraft Gesetzes Unterhalt zu gewähren hat. Der Drittschuldner kann nach dem Inhalt des früheren Pfändungsbeschlusses mit befreiender Wirkung leisten, bis ihm der Änderungsbeschluss zugestellt wird.
§ 850h Verschleiertes Arbeitseinkommen
(1) Hat sich der Empfänger der vom Schuldner geleisteten Arbeiten oder Dienste verpflichtet, Leistungen an einen Dritten zu bewirken, die nach Lage der Verhältnisse ganz oder teilweise eine Vergütung für die Leistung des Schuldners darstellen, so kann der Anspruch des Drittberechtigten insoweit auf Grund des Schuldtitels gegen den Schuldner gepfändet werden, wie wenn der Anspruch dem Schuldner zustände. Die Pfändung des Vergütungsanspruchs des Schuldners umfasst ohne weiteres den Anspruch des Drittberechtigten. Der Pfändungsbeschluss ist dem Drittberechtigten ebenso wie dem Schuldner zuzustellen.
(2) Leistet der Schuldner einem Dritten in einem ständigen Verhältnis Arbeiten oder Dienste, die nach Art und Umfang üblicherweise vergütet werden, unentgeltlich oder gegen eine unverhältnismäßig geringe Vergütung, so gilt im Verhältnis des Gläubigers zu dem Empfänger der Arbeits- und Dienstleistungen eine angemessene Vergütung als geschuldet. Bei der Prüfung, ob diese Voraussetzungen vorliegen, sowie bei der Bemessung der Vergütung ist auf alle Umstände des Einzelfalles, insbesondere die Art der Arbeits- und
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Dienstleistung, die verwandtschaftlichen oder sonstigen Beziehungen zwischen dem Dienstberechtigten und dem Dienstverpflichteten und die wirtschaftliche Leistungsfähigkeit des Dienstberechtigten Rücksicht zu nehmen.
§ 850i Pfändungsschutz für sonstige Einkünfte
(1) Werden nicht wiederkehrend zahlbare Vergütungen für persönlich geleistete Arbeiten oder Dienste oder sonstige Einkünfte, die kein Arbeitseinkommen sind, gepfändet, so hat das Gericht dem Schuldner auf Antrag während eines angemessenen Zeitraums so viel zu belassen, als ihm nach freier Schätzung des Gerichts verbleiben würde, wenn sein Einkommen aus laufendem Arbeits- oder Dienstlohn bestünde. Bei der Entscheidung sind die wirtschaftlichen Verhältnisse des Schuldners, insbesondere seine sonstigen Verdienstmöglichkeiten, frei zu würdigen. Der Antrag des Schuldners ist insoweit abzulehnen, als überwiegende Belange des Gläubigers entgegenstehen.
(2) Die Vorschriften des § 27 des Heimarbeitsgesetzes vom 14. März 1951 (BGBl. I S. 191) bleiben unberührt.
(3) Die Bestimmungen der Versicherungs-, Versorgungs- und sonstigen gesetzlichen Vorschriften über die Pfändung von Ansprüchen bestimmter Art bleiben unberührt.
§ 850k Pfändungsschutzkonto
(1) Wird das Guthaben auf dem Pfändungsschutzkonto des Schuldners bei einem Kreditinstitut gepfändet, kann der Schuldner jeweils bis zum Ende des Kalendermonats über Guthaben in Höhe des monatlichen Freibetrages nach § 850c Abs. 1 Satz 1 in Verbindung mit § 850c Abs. 2a verfügen; insoweit wird es nicht von der Pfändung erfasst. Zum Guthaben im Sinne des Satzes 1 gehört auch das Guthaben, das bis zum Ablauf der Frist des § 835 Absatz 4 nicht an den Gläubiger geleistet oder hinterlegt werden darf. Soweit der Schuldner in dem jeweiligen Kalendermonat nicht über Guthaben in Höhe des nach Satz 1 pfändungsfreien Betrages verfügt hat, wird dieses Guthaben in dem folgenden Kalendermonat zusätzlich zu dem nach Satz 1 geschützten Guthaben nicht von der Pfändung erfasst. Die Sätze 1 bis 3 gelten entsprechend, wenn das Guthaben auf einem Girokonto des Schuldners gepfändet ist, das vor Ablauf von vier Wochen seit der Zustellung des Überweisungsbeschlusses an den Drittschuldner in ein Pfändungsschutzkonto umgewandelt wird.
(2) Die Pfändung des Guthabens gilt im Übrigen als mit der Maßgabe ausgesprochen, dass in Erhöhung des Freibetrages nach Absatz 1 folgende Beträge nicht von der Pfändung erfasst sind: 1. die pfändungsfreien Beträge nach § 850c Abs. 1 Satz 2 in Verbindung mit § 850c Abs. 2a Satz 1, wenn
a) der Schuldner einer oder mehreren Personen aufgrund gesetzlicher Verpflichtung Unterhalt gewährt oder
b) der Schuldner Geldleistungen nach dem Zweiten oder Zwölften Buch Sozialgesetzbuch für mit ihm in einer Gemeinschaft im Sinne des § 7 Abs. 3 des Zweiten Buches Sozialgesetzbuch oder der §§ 19, 20, 36 Satz 1 oder 43 des Zwölften Buches Sozialgesetzbuch lebende Personen, denen er nicht aufgrund gesetzlicher Vorschriften zum Unterhalt verpflichtet ist, entgegennimmt;
2. einmalige Geldleistungen im Sinne des § 54 Abs. 2 des Ersten Buches Sozialgesetzbuch und Geldleistungen zum Ausgleich des durch einen Körper- oder Gesundheitsschaden bedingten Mehraufwandes im Sinne des § 54 Abs. 3 Nr. 3 des Ersten Buches Sozialgesetzbuch;
3. das Kindergeld oder andere Geldleistungen für Kinder, es sei denn, dass wegen einer Unterhaltsforderung eines Kindes, für das die Leistungen gewährt oder bei dem es berücksichtigt wird, gepfändet wird.
Für die Beträge nach Satz 1 gilt Absatz 1 Satz 3 entsprechend.
(3) An die Stelle der nach Absatz 1 und Absatz 2 Satz 1 Nr. 1 pfändungsfreien Beträge tritt der vom Vollstreckungsgericht im Pfändungsbeschluss belassene Betrag, wenn das Guthaben wegen der in § 850d bezeichneten Forderungen gepfändet wird.
(4) Das Vollstreckungsgericht kann auf Antrag einen von den Absätzen 1, 2 Satz 1 Nr. 1 und Absatz 3 abweichenden pfändungsfreien Betrag festsetzen. Die §§ 850a, 850b, 850c, 850d Abs. 1 und 2, die §§ 850e, 850f, 850g und 850i sowie die §§ 851c und 851d dieses Gesetzes sowie § 54 Abs. 2, Abs. 3 Nr. 1, 2 und 3, Abs. 4 und 5 des Ersten Buches Sozialgesetzbuch, § 17 Abs. 1 Satz 2 des Zwölften Buches Sozialgesetzbuch und § 76 des Einkommensteuergesetzes sind entsprechend anzuwenden. Im Übrigen ist das Vollstreckungsgericht befugt, die in § 732 Abs. 2 bezeichneten Anordnungen zu erlassen.
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(5) Das Kreditinstitut ist dem Schuldner zur Leistung aus dem nach Absatz 1 und 3 nicht von der Pfändung erfassten Guthaben im Rahmen des vertraglich Vereinbarten verpflichtet. Dies gilt für die nach Absatz 2 nicht von der Pfändung erfassten Beträge nur insoweit, als der Schuldner durch eine Bescheinigung des Arbeitgebers, der Familienkasse, des Sozialleistungsträgers oder einer geeigneten Person oder Stelle im Sinne von § 305 Abs. 1 Nr. 1 der Insolvenzordnung nachweist, dass das Guthaben nicht von der Pfändung erfasst ist. Die Leistung des Kreditinstituts an den Schuldner hat befreiende Wirkung, wenn ihm die Unrichtigkeit einer Bescheinigung nach Satz 2 weder bekannt noch infolge grober Fahrlässigkeit unbekannt ist. Kann der Schuldner den Nachweis nach Satz 2 nicht führen, so hat das Vollstreckungsgericht auf Antrag die Beträge nach Absatz 2 zu bestimmen. Die Sätze 1 bis 4 gelten auch für eine Hinterlegung.
(6) Wird einem Pfändungsschutzkonto eine Geldleistung nach dem Sozialgesetzbuch oder Kindergeld gutgeschrieben, darf das Kreditinstitut die Forderung, die durch die Gutschrift entsteht, für die Dauer von 14 Tagen seit der Gutschrift nur mit solchen Forderungen verrechnen und hiergegen nur mit solchen Forderungen aufrechnen, die ihm als Entgelt für die Kontoführung oder aufgrund von Kontoverfügungen des Berechtigten innerhalb dieses Zeitraums zustehen. Bis zur Höhe des danach verbleibenden Betrages der Gutschrift ist das Kreditinstitut innerhalb von 14 Tagen seit der Gutschrift nicht berechtigt, die Ausführung von Zahlungsvorgängen wegen fehlender Deckung abzulehnen, wenn der Berechtigte nachweist oder dem Kreditinstitut sonst bekannt ist, dass es sich um die Gutschrift einer Geldleistung nach dem Sozialgesetzbuch oder von Kindergeld handelt. Das Entgelt des Kreditinstituts für die Kontoführung kann auch mit Beträgen nach den Absätzen 1 bis 4 verrechnet werden.
(7) In einem der Führung eines Girokontos zugrunde liegenden Vertrag können der Kunde, der eine natürliche Person ist, oder dessen gesetzlicher Vertreter und das Kreditinstitut vereinbaren, dass das Girokonto als Pfändungsschutzkonto geführt wird. Der Kunde kann jederzeit verlangen, dass das Kreditinstitut sein Girokonto als Pfändungsschutzkonto führt. Ist das Guthaben des Girokontos bereits gepfändet worden, so kann der Schuldner die Führung als Pfändungsschutzkonto zum Beginn des vierten auf seine Erklärung folgenden Geschäftstages verlangen.
(8) Jede Person darf nur ein Pfändungsschutzkonto unterhalten. Bei der Abrede hat der Kunde gegenüber dem Kreditinstitut zu versichern, dass er kein weiteres Pfändungsschutzkonto unterhält. Das Kreditinstitut darf Auskunfteien mitteilen, dass es für den Kunden ein Pfändungsschutzkonto führt. Die Auskunfteien dürfen diese Angabe nur verwenden, um Kreditinstituten auf Anfrage zum Zwecke der Überprüfung der Richtigkeit der Versicherung nach Satz 2 Auskunft darüber zu erteilen, ob die betroffene Person ein Pfändungsschutzkonto unterhält. Die Erhebung, Verarbeitung und Nutzung zu einem anderen als dem in Satz 4 genannten Zweck ist auch mit Einwilligung der betroffenen Person unzulässig.
(9) Unterhält ein Schuldner entgegen Absatz 8 Satz 1 mehrere Girokonten als Pfändungsschutzkonten, ordnet das Vollstreckungsgericht auf Antrag eines Gläubigers an, dass nur das von dem Gläubiger in dem Antrag bezeichnete Girokonto dem Schuldner als Pfändungsschutzkonto verbleibt. Der Gläubiger hat die Voraussetzungen nach Satz 1 durch Vorlage entsprechender Erklärungen der Drittschuldner glaubhaft zu machen. Eine Anhörung des Schuldners unterbleibt. Die Entscheidung ist allen Drittschuldnern zuzustellen. Mit der Zustellung der Entscheidung an diejenigen Kreditinstitute, deren Girokonten nicht zum Pfändungsschutzkonto bestimmt sind, entfallen die Wirkungen nach den Absätzen 1 bis 6.
§ 850l Anordnung der Unpfändbarkeit von Kontoguthaben auf dem Pfändungsschutzkonto
Auf Antrag des Schuldners kann das Vollstreckungsgericht anordnen, dass das Guthaben auf dem Pfändungsschutzkonto für die Dauer von bis zu zwölf Monaten der Pfändung nicht unterworfen ist, wenn der Schuldner nachweist, dass dem Konto in den letzten sechs Monaten vor Antragstellung ganz überwiegend nur unpfändbare Beträge gutgeschrieben worden sind, und er glaubhaft macht, dass auch innerhalb der nächsten zwölf Monate nur ganz überwiegend nicht pfändbare Beträge zu erwarten sind. Die Anordnung kann versagt werden, wenn überwiegende Belange des Gläubigers entgegenstehen. Sie ist auf Antrag eines Gläubigers aufzuheben, wenn ihre Voraussetzungen nicht mehr vorliegen oder die Anordnung den überwiegenden Belangen dieses Gläubigers entgegensteht.
§ 851 Nicht übertragbare Forderungen
(1) Eine Forderung ist in Ermangelung besonderer Vorschriften der Pfändung nur insoweit unterworfen, als sie übertragbar ist.
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(2) Eine nach § 399 des Bürgerlichen Gesetzbuchs nicht übertragbare Forderung kann insoweit gepfändet und zur Einziehung überwiesen werden, als der geschuldete Gegenstand der Pfändung unterworfen ist.
§ 851a Pfändungsschutz für Landwirte
(1) Die Pfändung von Forderungen, die einem die Landwirtschaft betreibenden Schuldner aus dem Verkauf von landwirtschaftlichen Erzeugnissen zustehen, ist auf seinen Antrag vom Vollstreckungsgericht insoweit aufzuheben, als die Einkünfte zum Unterhalt des Schuldners, seiner Familie und seiner Arbeitnehmer oder zur Aufrechterhaltung einer geordneten Wirtschaftsführung unentbehrlich sind.
(2) Die Pfändung soll unterbleiben, wenn offenkundig ist, dass die Voraussetzungen für die Aufhebung der Zwangsvollstreckung nach Absatz 1 vorliegen.
§ 851b Pfändungsschutz bei Miet- und Pachtzinsen
(1) Die Pfändung von Miete und Pacht ist auf Antrag des Schuldners vom Vollstreckungsgericht insoweit aufzuheben, als diese Einkünfte für den Schuldner zur laufenden Unterhaltung des Grundstücks, zur Vornahme notwendiger Instandsetzungsarbeiten und zur Befriedigung von Ansprüchen unentbehrlich sind, die bei einer Zwangsvollstreckung in das Grundstück dem Anspruch des Gläubigers nach § 10 des Gesetzes über die Zwangsversteigerung und die Zwangsverwaltung vorgehen würden. Das Gleiche gilt von der Pfändung von Barmitteln und Guthaben, die aus Miet- oder Pachtzahlungen herrühren und zu den in Satz 1 bezeichneten Zwecken unentbehrlich sind.
(2) Wird der Antrag nicht binnen einer Frist von zwei Wochen gestellt, so ist er ohne sachliche Prüfung zurückzuweisen, wenn das Vollstreckungsgericht der Überzeugung ist, dass der Schuldner den Antrag in der Absicht der Verschleppung oder aus grober Nachlässigkeit nicht früher gestellt hat. Die Frist beginnt mit der Pfändung.
(3) Anordnungen nach Absatz 1 können mehrmals ergehen und, soweit es nach Lage der Verhältnisse geboten ist, auf Antrag aufgehoben oder abgeändert werden.
(4) Vor den in den Absätzen 1 und 3 bezeichneten Entscheidungen ist, soweit dies ohne erhebliche Verzögerung möglich ist, der Gläubiger zu hören. Die für die Entscheidung wesentlichen tatsächlichen Verhältnisse sind glaubhaft zu machen. Die Pfändung soll unterbleiben, wenn offenkundig ist, dass die Voraussetzungen für die Aufhebung der Zwangsvollstreckung nach Absatz 1 vorliegen.
§ 851c Pfändungsschutz bei Altersrenten
(1) Ansprüche auf Leistungen, die auf Grund von Verträgen gewährt werden, dürfen nur wie Arbeitseinkommen gepfändet werden, wenn 1. die Leistung in regelmäßigen Zeitabständen lebenslang und nicht vor Vollendung des 60. Lebensjahres oder
nur bei Eintritt der Berufsunfähigkeit gewährt wird, 2. über die Ansprüche aus dem Vertrag nicht verfügt werden darf, 3. die Bestimmung von Dritten mit Ausnahme von Hinterbliebenen als Berechtigte ausgeschlossen ist und 4. die Zahlung einer Kapitalleistung, ausgenommen eine Zahlung für den Todesfall, nicht vereinbart wurde.
(2) Um dem Schuldner den Aufbau einer angemessenen Alterssicherung zu ermöglichen, kann er unter Berücksichtigung der Entwicklung auf dem Kapitalmarkt, des Sterblichkeitsrisikos und der Höhe der Pfändungsfreigrenze, nach seinem Lebensalter gestaffelt, jährlich einen bestimmten Betrag unpfändbar auf der Grundlage eines in Absatz 1 bezeichneten Vertrags bis zu einer Gesamtsumme von 256 000 Euro ansammeln. Der Schuldner darf vom 18. bis zum vollendeten 29. Lebensjahr 2 000 Euro, vom 30. bis zum vollendeten 39. Lebensjahr 4 000 Euro, vom 40. bis zum vollendeten 47. Lebensjahr 4 500 Euro, vom 48. bis zum vollendeten 53. Lebensjahr 6 000 Euro, vom 54. bis zum vollendeten 59. Lebensjahr 8 000 Euro und vom 60. bis zum vollendeten 67. Lebensjahr 9 000 Euro jährlich ansammeln. Übersteigt der Rückkaufwert der Alterssicherung den unpfändbaren Betrag, sind drei Zehntel des überschießenden Betrags unpfändbar. Satz 3 gilt nicht für den Teil des Rückkaufwerts, der den dreifachen Wert des in Satz 1 genannten Betrags übersteigt.
(3) § 850e Nr. 2 und 2a gilt entsprechend.
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§ 851d Pfändungsschutz bei steuerlich gefördertem Altersvorsorgevermögen
Monatliche Leistungen in Form einer lebenslangen Rente oder monatlicher Ratenzahlungen im Rahmen eines Auszahlungsplans nach § 1 Abs. 1 Satz 1 Nr. 4 des Altersvorsorgeverträge-Zertifizierungsgesetzes aus steuerlich gefördertem Altersvorsorgevermögen sind wie Arbeitseinkommen pfändbar.
§ 852 Beschränkt pfändbare Forderungen
(1) Der Pflichtteilsanspruch ist der Pfändung nur unterworfen, wenn er durch Vertrag anerkannt oder rechtshängig geworden ist.
(2) Das Gleiche gilt für den nach § 528 des Bürgerlichen Gesetzbuchs dem Schenker zustehenden Anspruch auf Herausgabe des Geschenkes sowie für den Anspruch eines Ehegatten auf den Ausgleich des Zugewinns.
§ 853 Mehrfache Pfändung einer Geldforderung
Ist eine Geldforderung für mehrere Gläubiger gepfändet, so ist der Drittschuldner berechtigt und auf Verlangen eines Gläubigers, dem die Forderung überwiesen wurde, verpflichtet, unter Anzeige der Sachlage und unter Aushändigung der ihm zugestellten Beschlüsse an das Amtsgericht, dessen Beschluss ihm zuerst zugestellt ist, den Schuldbetrag zu hinterlegen.
§ 854 Mehrfache Pfändung eines Anspruchs auf bewegliche Sachen
(1) Ist ein Anspruch, der eine bewegliche körperliche Sache betrifft, für mehrere Gläubiger gepfändet, so ist der Drittschuldner berechtigt und auf Verlangen eines Gläubigers, dem der Anspruch überwiesen wurde, verpflichtet, die Sache unter Anzeige der Sachlage und unter Aushändigung der ihm zugestellten Beschlüsse dem Gerichtsvollzieher herauszugeben, der nach dem ihm zuerst zugestellten Beschluss zur Empfangnahme der Sache ermächtigt ist. Hat der Gläubiger einen solchen Gerichtsvollzieher nicht bezeichnet, so wird dieser auf Antrag des Drittschuldners von dem Amtsgericht des Ortes ernannt, wo die Sache herauszugeben ist.
(2) Ist der Erlös zur Deckung der Forderungen nicht ausreichend und verlangt der Gläubiger, für den die zweite oder eine spätere Pfändung erfolgt ist, ohne Zustimmung der übrigen beteiligten Gläubiger eine andere Verteilung als nach der Reihenfolge der Pfändungen, so hat der Gerichtsvollzieher die Sachlage unter Hinterlegung des Erlöses dem Amtsgericht anzuzeigen, dessen Beschluss dem Drittschuldner zuerst zugestellt ist. Dieser Anzeige sind die Dokumente beizufügen, die sich auf das Verfahren beziehen.
(3) In gleicher Weise ist zu verfahren, wenn die Pfändung für mehrere Gläubiger gleichzeitig bewirkt ist.
§ 855 Mehrfache Pfändung eines Anspruchs auf eine unbewegliche Sache
Betrifft der Anspruch eine unbewegliche Sache, so ist der Drittschuldner berechtigt und auf Verlangen eines Gläubigers, dem der Anspruch überwiesen wurde, verpflichtet, die Sache unter Anzeige der Sachlage und unter Aushändigung der ihm zugestellten Beschlüsse an den von dem Amtsgericht der belegenen Sache ernannten oder auf seinen Antrag zu ernennenden Sequester herauszugeben.
§ 855a Mehrfache Pfändung eines Anspruchs auf ein Schiff
(1) Betrifft der Anspruch ein eingetragenes Schiff, so ist der Drittschuldner berechtigt und auf Verlangen eines Gläubigers, dem der Anspruch überwiesen wurde, verpflichtet, das Schiff unter Anzeige der Sachlage und unter Aushändigung der Beschlüsse dem Treuhänder herauszugeben, der in dem ihm zuerst zugestellten Beschluss bestellt ist.
(2) Absatz 1 gilt sinngemäß, wenn der Anspruch ein Schiffsbauwerk betrifft, das im Schiffsbauregister eingetragen ist oder in dieses Register eingetragen werden kann.
§ 856 Klage bei mehrfacher Pfändung
(1) Jeder Gläubiger, dem der Anspruch überwiesen wurde, ist berechtigt, gegen den Drittschuldner Klage auf Erfüllung der nach den Vorschriften der §§ 853 bis 855 diesem obliegenden Verpflichtungen zu erheben.
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(2) Jeder Gläubiger, für den der Anspruch gepfändet ist, kann sich dem Kläger in jeder Lage des Rechtsstreits als Streitgenosse anschließen.
(3) Der Drittschuldner hat bei dem Prozessgericht zu beantragen, dass die Gläubiger, welche die Klage nicht erhoben und dem Kläger sich nicht angeschlossen haben, zum Termin zur mündlichen Verhandlung geladen werden.
(4) Die Entscheidung, die in dem Rechtsstreit über den in der Klage erhobenen Anspruch erlassen wird, ist für und gegen sämtliche Gläubiger wirksam.
(5) Der Drittschuldner kann sich gegenüber einem Gläubiger auf die ihm günstige Entscheidung nicht berufen, wenn der Gläubiger zum Termin zur mündlichen Verhandlung nicht geladen worden ist.
§ 857 Zwangsvollstreckung in andere Vermögensrechte
(1) Für die Zwangsvollstreckung in andere Vermögensrechte, die nicht Gegenstand der Zwangsvollstreckung in das unbewegliche Vermögen sind, gelten die vorstehenden Vorschriften entsprechend.
(2) Ist ein Drittschuldner nicht vorhanden, so ist die Pfändung mit dem Zeitpunkt als bewirkt anzusehen, in welchem dem Schuldner das Gebot, sich jeder Verfügung über das Recht zu enthalten, zugestellt ist.
(3) Ein unveräußerliches Recht ist in Ermangelung besonderer Vorschriften der Pfändung insoweit unterworfen, als die Ausübung einem anderen überlassen werden kann.
(4) Das Gericht kann bei der Zwangsvollstreckung in unveräußerliche Rechte, deren Ausübung einem anderen überlassen werden kann, besondere Anordnungen erlassen. Es kann insbesondere bei der Zwangsvollstreckung in Nutzungsrechte eine Verwaltung anordnen; in diesem Fall wird die Pfändung durch Übergabe der zu benutzenden Sache an den Verwalter bewirkt, sofern sie nicht durch Zustellung des Beschlusses bereits vorher bewirkt ist.
(5) Ist die Veräußerung des Rechts selbst zulässig, so kann auch diese Veräußerung von dem Gericht angeordnet werden.
(6) Auf die Zwangsvollstreckung in eine Reallast, eine Grundschuld oder eine Rentenschuld sind die Vorschriften über die Zwangsvollstreckung in eine Forderung, für die eine Hypothek besteht, entsprechend anzuwenden.
(7) Die Vorschrift des § 845 Abs. 1 Satz 2 ist nicht anzuwenden.
§ 858 Zwangsvollstreckung in Schiffspart
(1) Für die Zwangsvollstreckung in die Schiffspart (§§ 489 ff. des Handelsgesetzbuchs) gilt § 857 mit folgenden Abweichungen.
(2) Als Vollstreckungsgericht ist das Amtsgericht zuständig, bei dem das Register für das Schiff geführt wird.
(3) Die Pfändung bedarf der Eintragung in das Schiffsregister; die Eintragung erfolgt auf Grund des Pfändungsbeschlusses. Der Pfändungsbeschluss soll dem Korrespondentreeder zugestellt werden; wird der Beschluss diesem vor der Eintragung zugestellt, so gilt die Pfändung ihm gegenüber mit der Zustellung als bewirkt.
(4) Verwertet wird die gepfändete Schiffspart im Wege der Veräußerung. Dem Antrag auf Anordnung der Veräußerung ist ein Auszug aus dem Schiffsregister beizufügen, der alle das Schiff und die Schiffspart betreffenden Eintragungen enthält; der Auszug darf nicht älter als eine Woche sein.
(5) Ergibt der Auszug aus dem Schiffsregister, dass die Schiffspart mit einem Pfandrecht belastet ist, das einem anderen als dem betreibenden Gläubiger zusteht, so ist die Hinterlegung des Erlöses anzuordnen. Der Erlös wird in diesem Fall nach den Vorschriften der §§ 873 bis 882 verteilt; Forderungen, für die ein Pfandrecht an der Schiffspart eingetragen ist, sind nach dem Inhalt des Schiffsregisters in den Teilungsplan aufzunehmen.
§ 859 Pfändung von Gesamthandanteilen
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(1) Der Anteil eines Gesellschafters an dem Gesellschaftsvermögen einer nach § 705 des Bürgerlichen Gesetzbuchs eingegangenen Gesellschaft ist der Pfändung unterworfen. Der Anteil eines Gesellschafters an den einzelnen zu dem Gesellschaftsvermögen gehörenden Gegenständen ist der Pfändung nicht unterworfen.
(2) Die gleichen Vorschriften gelten für den Anteil eines Miterben an dem Nachlass und an den einzelnen Nachlassgegenständen.
§ 860 Pfändung von Gesamtgutanteilen
(1) Bei dem Güterstand der Gütergemeinschaft ist der Anteil eines Ehegatten an dem Gesamtgut und an den einzelnen dazu gehörenden Gegenständen der Pfändung nicht unterworfen. Das Gleiche gilt bei der fortgesetzten Gütergemeinschaft von den Anteilen des überlebenden Ehegatten und der Abkömmlinge.
(2) Nach der Beendigung der Gemeinschaft ist der Anteil an dem Gesamtgut zugunsten der Gläubiger des Anteilsberechtigten der Pfändung unterworfen.
§§ 861 und 862 (weggefallen)
§ 863 Pfändungsbeschränkungen bei Erbschaftsnutzungen
(1) Ist der Schuldner als Erbe nach § 2338 des Bürgerlichen Gesetzbuchs durch die Einsetzung eines Nacherben beschränkt, so sind die Nutzungen der Erbschaft der Pfändung nicht unterworfen, soweit sie zur Erfüllung der dem Schuldner seinem Ehegatten, seinem früheren Ehegatten, seinem Lebenspartner, einem früheren Lebenspartner oder seinen Verwandten gegenüber gesetzlich obliegenden Unterhaltspflicht und zur Bestreitung seines standesmäßigen Unterhalts erforderlich sind. Das Gleiche gilt, wenn der Schuldner nach § 2338 des Bürgerlichen Gesetzbuchs durch die Ernennung eines Testamentsvollstreckers beschränkt ist, für seinen Anspruch auf den jährlichen Reinertrag.
(2) Die Pfändung ist unbeschränkt zulässig, wenn der Anspruch eines Nachlassgläubigers oder ein auch dem Nacherben oder dem Testamentsvollstrecker gegenüber wirksames Recht geltend gemacht wird.
(3) Diese Vorschriften gelten entsprechend, wenn der Anteil eines Abkömmlings an dem Gesamtgut der fortgesetzten Gütergemeinschaft nach § 1513 Abs. 2 des Bürgerlichen Gesetzbuchs einer Beschränkung der im Absatz 1 bezeichneten Art unterliegt.
Titel 3 Zwangsvollstreckung in das unbewegliche Vermögen § 864 Gegenstand der Immobiliarvollstreckung
(1) Der Zwangsvollstreckung in das unbewegliche Vermögen unterliegen außer den Grundstücken die Berechtigungen, für welche die sich auf Grundstücke beziehenden Vorschriften gelten, die im Schiffsregister eingetragenen Schiffe und die Schiffsbauwerke, die im Schiffsbauregister eingetragen sind oder in dieses Register eingetragen werden können.
(2) Die Zwangsvollstreckung in den Bruchteil eines Grundstücks, einer Berechtigung der im Absatz 1 bezeichneten Art oder eines Schiffes oder Schiffsbauwerks ist nur zulässig, wenn der Bruchteil in dem Anteil eines Miteigentümers besteht oder wenn sich der Anspruch des Gläubigers auf ein Recht gründet, mit dem der Bruchteil als solcher belastet ist.
§ 865 Verhältnis zur Mobiliarvollstreckung
(1) Die Zwangsvollstreckung in das unbewegliche Vermögen umfasst auch die Gegenstände, auf die sich bei Grundstücken und Berechtigungen die Hypothek, bei Schiffen oder Schiffsbauwerken die Schiffshypothek erstreckt.
(2) Diese Gegenstände können, soweit sie Zubehör sind, nicht gepfändet werden. Im Übrigen unterliegen sie der Zwangsvollstreckung in das bewegliche Vermögen, solange nicht ihre Beschlagnahme im Wege der Zwangsvollstreckung in das unbewegliche Vermögen erfolgt ist.
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§ 866 Arten der Vollstreckung
(1) Die Zwangsvollstreckung in ein Grundstück erfolgt durch Eintragung einer Sicherungshypothek für die Forderung, durch Zwangsversteigerung und durch Zwangsverwaltung.
(2) Der Gläubiger kann verlangen, dass eine dieser Maßregeln allein oder neben den übrigen ausgeführt werde.
(3) Eine Sicherungshypothek (Absatz 1) darf nur für einen Betrag von mehr als 750 Euro eingetragen werden; Zinsen bleiben dabei unberücksichtigt, soweit sie als Nebenforderung geltend gemacht sind. Auf Grund mehrerer demselben Gläubiger zustehender Schuldtitel kann eine einheitliche Sicherungshypothek eingetragen werden.
§ 867 Zwangshypothek
(1) Die Sicherungshypothek wird auf Antrag des Gläubigers in das Grundbuch eingetragen; die Eintragung ist auf dem vollstreckbaren Titel zu vermerken. Mit der Eintragung entsteht die Hypothek. Das Grundstück haftet auch für die dem Schuldner zur Last fallenden Kosten der Eintragung.
(2) Sollen mehrere Grundstücke des Schuldners mit der Hypothek belastet werden, so ist der Betrag der Forderung auf die einzelnen Grundstücke zu verteilen. Die Größe der Teile bestimmt der Gläubiger; für die Teile gilt § 866 Abs. 3 Satz 1 entsprechend.
(3) Zur Befriedigung aus dem Grundstück durch Zwangsversteigerung genügt der vollstreckbare Titel, auf dem die Eintragung vermerkt ist.
§ 868 Erwerb der Zwangshypothek durch den Eigentümer
(1) Wird durch eine vollstreckbare Entscheidung die zu vollstreckende Entscheidung oder ihre vorläufige Vollstreckbarkeit aufgehoben oder die Zwangsvollstreckung für unzulässig erklärt oder deren Einstellung angeordnet, so erwirbt der Eigentümer des Grundstücks die Hypothek.
(2) Das Gleiche gilt, wenn durch eine gerichtliche Entscheidung die einstweilige Einstellung der Vollstreckung und zugleich die Aufhebung der erfolgten Vollstreckungsmaßregeln angeordnet wird oder wenn die zur Abwendung der Vollstreckung nachgelassene Sicherheitsleistung oder Hinterlegung erfolgt.
§ 869 Zwangsversteigerung und Zwangsverwaltung
Die Zwangsversteigerung und die Zwangsverwaltung werden durch ein besonderes Gesetz geregelt.
§ 870 Grundstücksgleiche Rechte
Auf die Zwangsvollstreckung in eine Berechtigung, für welche die sich auf Grundstücke beziehenden Vorschriften gelten, sind die Vorschriften über die Zwangsvollstreckung in Grundstücke entsprechend anzuwenden.
§ 870a Zwangsvollstreckung in ein Schiff oder Schiffsbauwerk
(1) Die Zwangsvollstreckung in ein eingetragenes Schiff oder in ein Schiffsbauwerk, das im Schiffsbauregister eingetragen ist oder in dieses Register eingetragen werden kann, erfolgt durch Eintragung einer Schiffshypothek für die Forderung oder durch Zwangsversteigerung. Die Anordnung einer Zwangsversteigerung eines Seeschiffs ist unzulässig, wenn sich das Schiff auf der Reise befindet und nicht in einem Hafen liegt.
(2) § 866 Abs. 2, 3, § 867 gelten entsprechend.
(3) Wird durch eine vollstreckbare Entscheidung die zu vollstreckende Entscheidung oder ihre vorläufige Vollstreckbarkeit aufgehoben oder die Zwangsvollstreckung für unzulässig erklärt oder deren Einstellung angeordnet, so erlischt die Schiffshypothek; § 57 Abs. 3 des Gesetzes über Rechte an eingetragenen Schiffen und Schiffsbauwerken vom 15. November 1940 (RGBl. I S. 1499) ist anzuwenden. Das Gleiche gilt, wenn durch eine gerichtliche Entscheidung die einstweilige Einstellung der Zwangsvollstreckung und zugleich die Aufhebung der erfolgten Vollstreckungsmaßregeln angeordnet wird oder wenn die zur Abwendung der Vollstreckung nachgelassene Sicherheitsleistung oder Hinterlegung erfolgt.
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§ 871 Landesrechtlicher Vorbehalt bei Eisenbahnen
Unberührt bleiben die landesgesetzlichen Vorschriften, nach denen, wenn ein anderer als der Eigentümer einer Eisenbahn oder Kleinbahn den Betrieb der Bahn kraft eigenen Nutzungsrechts ausübt, das Nutzungsrecht und gewisse dem Betriebe gewidmete Gegenstände in Ansehung der Zwangsvollstreckung zum unbeweglichen Vermögen gehören und die Zwangsvollstreckung abweichend von den Vorschriften des Bundesrechts geregelt ist.
Titel 4 Verteilungsverfahren § 872 Voraussetzungen
Das Verteilungsverfahren tritt ein, wenn bei der Zwangsvollstreckung in das bewegliche Vermögen ein Geldbetrag hinterlegt ist, der zur Befriedigung der beteiligten Gläubiger nicht hinreicht.
§ 873 Aufforderung des Verteilungsgerichts
Das zuständige Amtsgericht (§§ 827, 853, 854) hat nach Eingang der Anzeige über die Sachlage an jeden der beteiligten Gläubiger die Aufforderung zu erlassen, binnen zwei Wochen eine Berechnung der Forderung an Kapital, Zinsen, Kosten und sonstigen Nebenforderungen einzureichen.
§ 874 Teilungsplan
(1) Nach Ablauf der zweiwöchigen Fristen wird von dem Gericht ein Teilungsplan angefertigt.
(2) Der Betrag der Kosten des Verfahrens ist von dem Bestand der Masse vorweg in Abzug zu bringen.
(3) Die Forderung eines Gläubigers, der bis zur Anfertigung des Teilungsplanes der an ihn gerichteten Aufforderung nicht nachgekommen ist, wird nach der Anzeige und deren Unterlagen berechnet. Eine nachträgliche Ergänzung der Forderung findet nicht statt.
§ 875 Terminsbestimmung
(1) Das Gericht hat zur Erklärung über den Teilungsplan sowie zur Ausführung der Verteilung einen Termin zu bestimmen. Der Teilungsplan muss spätestens drei Tage vor dem Termin auf der Geschäftsstelle zur Einsicht der Beteiligten niedergelegt werden.
(2) Die Ladung des Schuldners zu dem Termin ist nicht erforderlich, wenn sie durch Zustellung im Ausland oder durch öffentliche Zustellung erfolgen müsste.
§ 876 Termin zur Erklärung und Ausführung
Wird in dem Termin ein Widerspruch gegen den Plan nicht erhoben, so ist dieser zur Ausführung zu bringen. Erfolgt ein Widerspruch, so hat sich jeder dabei beteiligte Gläubiger sofort zu erklären. Wird der Widerspruch von den Beteiligten als begründet anerkannt oder kommt anderweit eine Einigung zustande, so ist der Plan demgemäß zu berichtigen. Wenn ein Widerspruch sich nicht erledigt, so wird der Plan insoweit ausgeführt, als er durch den Widerspruch nicht betroffen wird.
§ 877 Säumnisfolgen
(1) Gegen einen Gläubiger, der in dem Termin weder erschienen ist noch vor dem Termin bei dem Gericht Widerspruch erhoben hat, wird angenommen, dass er mit der Ausführung des Planes einverstanden sei.
(2) Ist ein in dem Termin nicht erschienener Gläubiger bei dem Widerspruch beteiligt, den ein anderer Gläubiger erhoben hat, so wird angenommen, dass er diesen Widerspruch nicht als begründet anerkenne.
§ 878 Widerspruchsklage
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(1) Der widersprechende Gläubiger muss ohne vorherige Aufforderung binnen einer Frist von einem Monat, die mit dem Terminstag beginnt, dem Gericht nachweisen, dass er gegen die beteiligten Gläubiger Klage erhoben habe. Nach fruchtlosem Ablauf dieser Frist wird die Ausführung des Planes ohne Rücksicht auf den Widerspruch angeordnet.
(2) Die Befugnis des Gläubigers, der dem Plan widersprochen hat, ein besseres Recht gegen den Gläubiger, der einen Geldbetrag nach dem Plan erhalten hat, im Wege der Klage geltend zu machen, wird durch die Versäumung der Frist und durch die Ausführung des Planes nicht ausgeschlossen.
§ 879 Zuständigkeit für die Widerspruchsklage
(1) Die Klage ist bei dem Verteilungsgericht und, wenn der Streitgegenstand zur Zuständigkeit der Amtsgerichte nicht gehört, bei dem Landgericht zu erheben, in dessen Bezirk das Verteilungsgericht seinen Sitz hat.
(2) Das Landgericht ist für sämtliche Klagen zuständig, wenn seine Zuständigkeit nach dem Inhalt der erhobenen und in dem Termin nicht zur Erledigung gelangten Widersprüche auch nur bei einer Klage begründet ist, sofern nicht die sämtlichen beteiligten Gläubiger vereinbaren, dass das Verteilungsgericht über alle Widersprüche entscheiden solle.
§ 880 Inhalt des Urteils
In dem Urteil, durch das über einen erhobenen Widerspruch entschieden wird, ist zugleich zu bestimmen, an welche Gläubiger und in welchen Beträgen der streitige Teil der Masse auszuzahlen sei. Wird dies nicht für angemessen erachtet, so ist die Anfertigung eines neuen Planes und ein anderweites Verteilungsverfahren in dem Urteil anzuordnen.
§ 881 Versäumnisurteil
Das Versäumnisurteil gegen einen widersprechenden Gläubiger ist dahin zu erlassen, dass der Widerspruch als zurückgenommen anzusehen sei.
§ 882 Verfahren nach dem Urteil
Auf Grund des erlassenen Urteils wird die Auszahlung oder das anderweite Verteilungsverfahren von dem Verteilungsgericht angeordnet.
Titel 5 Zwangsvollstreckung gegen juristische Personen des öffentlichen Rechts § 882a Zwangsvollstreckung wegen einer Geldforderung
(1) Die Zwangsvollstreckung gegen den Bund oder ein Land wegen einer Geldforderung darf, soweit nicht dingliche Rechte verfolgt werden, erst vier Wochen nach dem Zeitpunkt beginnen, in dem der Gläubiger seine Absicht, die Zwangsvollstreckung zu betreiben, der zur Vertretung des Schuldners berufenen Behörde und, sofern die Zwangsvollstreckung in ein von einer anderen Behörde verwaltetes Vermögen erfolgen soll, auch dem zuständigen Minister der Finanzen angezeigt hat. Dem Gläubiger ist auf Verlangen der Empfang der Anzeige zu bescheinigen. Soweit in solchen Fällen die Zwangsvollstreckung durch den Gerichtsvollzieher zu erfolgen hat, ist der Gerichtsvollzieher auf Antrag des Gläubigers vom Vollstreckungsgericht zu bestimmen.
(2) Die Zwangsvollstreckung ist unzulässig in Sachen, die für die Erfüllung öffentlicher Aufgaben des Schuldners unentbehrlich sind oder deren Veräußerung ein öffentliches Interesse entgegensteht. Darüber, ob die Voraussetzungen des Satzes 1 vorliegen, ist im Streitfall nach § 766 zu entscheiden. Vor der Entscheidung ist der zuständige Minister zu hören.
(3) Die Vorschriften der Absätze 1 und 2 sind auf die Zwangsvollstreckung gegen Körperschaften, Anstalten und Stiftungen des öffentlichen Rechtes mit der Maßgabe anzuwenden, dass an die Stelle der Behörde im Sinne des Absatzes 1 die gesetzlichen Vertreter treten. Für öffentlich-rechtliche Bank- und Kreditanstalten gelten die Beschränkungen der Absätze 1 und 2 nicht.
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(4) (weggefallen)
(5) Der Ankündigung der Zwangsvollstreckung und der Einhaltung einer Wartefrist nach Maßgabe der Absätze 1 und 3 bedarf es nicht, wenn es sich um den Vollzug einer einstweiligen Verfügung handelt.
Titel 6 Schuldnerverzeichnis § 882b Inhalt des Schuldnerverzeichnisses
(1) Das zentrale Vollstreckungsgericht nach § 882h Abs. 1 führt ein Verzeichnis (Schuldnerverzeichnis) derjenigen Personen, 1. deren Eintragung der Gerichtsvollzieher nach Maßgabe des § 882c angeordnet hat; 2. deren Eintragung die Vollstreckungsbehörde nach Maßgabe des § 284 Abs. 9 der Abgabenordnung
angeordnet hat; einer Eintragungsanordnung nach § 284 Abs. 9 der Abgabenordnung steht die Anordnung der Eintragung in das Schuldnerverzeichnis durch eine Vollstreckungsbehörde gleich, die auf Grund einer gleichwertigen Regelung durch Bundesgesetz oder durch Landesgesetz ergangen ist;
3. deren Eintragung das Insolvenzgericht nach Maßgabe des § 26 Abs. 2 der Insolvenzordnung angeordnet hat.
(2) Im Schuldnerverzeichnis werden angegeben: 1. Name, Vorname und Geburtsname des Schuldners sowie die Firma und deren Nummer des Registerblatts im
Handelsregister, 2. Geburtsdatum und Geburtsort des Schuldners, 3. Wohnsitze des Schuldners oder Sitz des Schuldners, einschließlich abweichender Personendaten.
(3) Im Schuldnerverzeichnis werden weiter angegeben: 1. Aktenzeichen und Gericht oder Vollstreckungsbehörde der Vollstreckungssache oder des
Insolvenzverfahrens, 2. im Fall des Absatzes 1 Nr. 1 das Datum der Eintragungsanordnung und der gemäß § 882c zur Eintragung
führende Grund, 3. im Fall des Absatzes 1 Nr. 2 das Datum der Eintragungsanordnung und der gemäß § 284 Abs. 9 der
Abgabenordnung oder einer gleichwertigen Regelung im Sinne von Absatz 1 Nr. 2 Halbsatz 2 zur Eintragung führende Grund,
4. im Fall des Absatzes 1 Nr. 3 das Datum der Eintragungsanordnung und die Feststellung, dass ein Antrag auf Eröffnung des Insolvenzverfahrens über das Vermögen des Schuldners mangels Masse abgewiesen wurde.
§ 882c Eintragungsanordnung
(1) Der zuständige Gerichtsvollzieher ordnet von Amts wegen die Eintragung des Schuldners in das Schuldnerverzeichnis an, wenn 1. der Schuldner seiner Pflicht zur Abgabe der Vermögensauskunft nicht nachgekommen ist; 2. eine Vollstreckung nach dem Inhalt des Vermögensverzeichnisses offensichtlich nicht geeignet wäre, zu
einer vollständigen Befriedigung des Gläubigers zu führen, auf dessen Antrag die Vermögensauskunft erteilt oder dem die erteilte Auskunft zugeleitet wurde, oder
3. der Schuldner dem Gerichtsvollzieher nicht innerhalb eines Monats nach Abgabe der Vermögensauskunft oder Bekanntgabe der Zuleitung nach § 802d Abs. 1 Satz 2 die vollständige Befriedigung des Gläubigers nachweist, auf dessen Antrag die Vermögensauskunft erteilt oder dem die erteilte Auskunft zugeleitet wurde. Dies gilt nicht, solange ein Zahlungsplan nach § 802b festgesetzt und nicht hinfällig ist.
(2) Die Eintragungsanordnung soll kurz begründet werden. Sie ist dem Schuldner zuzustellen, soweit sie ihm nicht mündlich bekannt gegeben und in das Protokoll aufgenommen wird (§ 763).
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(3) Die Eintragungsanordnung hat die in § 882b Abs. 2 und 3 genannten Daten zu enthalten. Sind dem Gerichtsvollzieher die nach § 882b Abs. 2 Nr. 1 bis 3 im Schuldnerverzeichnis anzugebenden Daten nicht bekannt, holt er Auskünfte bei den in § 755 Abs. 1 und 2 Satz 1 Nr. 1 genannten Stellen ein oder sieht das Handelsregister ein, um die erforderlichen Daten zu beschaffen.
§ 882d Vollziehung der Eintragungsanordnung
(1) Gegen die Eintragungsanordnung nach § 882c kann der Schuldner binnen zwei Wochen seit Bekanntgabe Widerspruch beim zuständigen Vollstreckungsgericht einlegen. Der Widerspruch hemmt nicht die Vollziehung. Nach Ablauf der Frist des Satzes 1 übermittelt der Gerichtsvollzieher die Anordnung unverzüglich elektronisch dem zentralen Vollstreckungsgericht nach § 882h Abs. 1. Dieses veranlasst die Eintragung des Schuldners.
(2) Auf Antrag des Schuldners kann das Vollstreckungsgericht anordnen, dass die Eintragung einstweilen ausgesetzt wird. Das zentrale Vollstreckungsgericht nach § 882h Abs. 1 hat von einer Eintragung abzusehen, wenn ihm die Ausfertigung einer vollstreckbaren Entscheidung vorgelegt wird, aus der sich ergibt, dass die Eintragungsanordnung einstweilen ausgesetzt ist.
(3) Über die Rechtsbehelfe nach den Absätzen 1 und 2 ist der Schuldner mit der Bekanntgabe der Eintragungsanordnung zu belehren. Das Gericht, das über die Rechtsbehelfe entschieden hat, übermittelt seine Entscheidung dem zentralen Vollstreckungsgericht nach § 882h Abs. 1 elektronisch.
§ 882e Löschung
(1) Eine Eintragung im Schuldnerverzeichnis wird nach Ablauf von drei Jahren seit dem Tag der Eintragungsanordnung von dem zentralen Vollstreckungsgericht nach § 882h Abs. 1 gelöscht. Im Fall des § 882b Abs. 1 Nr. 3 beträgt die Löschungsfrist fünf Jahre seit Erlass des Abweisungsbeschlusses.
(2) Über Einwendungen gegen die Löschung nach Absatz 1 oder ihre Versagung entscheidet der Urkundsbeamte der Geschäftsstelle. Gegen seine Entscheidung findet die Erinnerung nach § 573 statt.
(3) Abweichend von Absatz 1 wird eine Eintragung auf Anordnung des zentralen Vollstreckungsgerichts nach § 882h Abs. 1 gelöscht, wenn diesem 1. die vollständige Befriedigung des Gläubigers nachgewiesen worden ist; 2. das Fehlen oder der Wegfall des Eintragungsgrundes bekannt geworden ist oder 3. die Ausfertigung einer vollstreckbaren Entscheidung vorgelegt wird, aus der sich ergibt, dass die
Eintragungsanordnung aufgehoben oder einstweilen ausgesetzt ist.
(4) Wird dem zentralen Vollstreckungsgericht nach § 882h Abs. 1 bekannt, dass der Inhalt einer Eintragung von Beginn an fehlerhaft war, wird die Eintragung durch den Urkundsbeamten der Geschäftsstelle geändert. Wird der Schuldner oder ein Dritter durch die Änderung der Eintragung beschwert, findet die Erinnerung nach § 573 statt.
§ 882f Einsicht in das Schuldnerverzeichnis
Die Einsicht in das Schuldnerverzeichnis ist jedem gestattet, der darlegt, Angaben nach § 882b zu benötigen: 1. für Zwecke der Zwangsvollstreckung; 2. um gesetzliche Pflichten zur Prüfung der wirtschaftlichen Zuverlässigkeit zu erfüllen; 3. um Voraussetzungen für die Gewährung von öffentlichen Leistungen zu prüfen; 4. um wirtschaftliche Nachteile abzuwenden, die daraus entstehen können, dass Schuldner ihren
Zahlungsverpflichtungen nicht nachkommen; 5. für Zwecke der Strafverfolgung und der Strafvollstreckung; 6. zur Auskunft über ihn selbst betreffende Eintragungen. Die Informationen dürfen nur für den Zweck verwendet werden, für den sie übermittelt worden sind; sie sind nach Zweckerreichung zu löschen. Nichtöffentliche Stellen sind darauf bei der Übermittlung hinzuweisen.
§ 882g Erteilung von Abdrucken
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(1) Aus dem Schuldnerverzeichnis können auf Antrag Abdrucke zum laufenden Bezug erteilt werden, auch durch Übermittlung in einer nur maschinell lesbaren Form. Bei der Übermittlung in einer nur maschinell lesbaren Form gelten die von der Landesjustizverwaltung festgelegten Datenübertragungsregeln.
(2) Abdrucke erhalten: 1. Industrie- und Handelskammern sowie Körperschaften des öffentlichen Rechts, in denen Angehörige eines
Berufes kraft Gesetzes zusammengeschlossen sind (Kammern), 2. Antragsteller, die Abdrucke zur Errichtung und Führung nichtöffentlicher zentraler Schuldnerverzeichnisse
verwenden, oder 3. Antragsteller, deren berechtigtem Interesse durch Einzeleinsicht in die Länderschuldnerverzeichnisse oder
durch den Bezug von Listen nach Absatz 5 nicht hinreichend Rechnung getragen werden kann.
(3) Die Abdrucke sind vertraulich zu behandeln und dürfen Dritten nicht zugänglich gemacht werden. Nach der Beendigung des laufenden Bezugs sind die Abdrucke unverzüglich zu vernichten; Auskünfte dürfen nicht mehr erteilt werden.
(4) Die Kammern dürfen ihren Mitgliedern oder den Mitgliedern einer anderen Kammer Auskünfte erteilen. Andere Bezieher von Abdrucken dürfen Auskünfte erteilen, soweit dies zu ihrer ordnungsgemäßen Tätigkeit gehört. Absatz 3 gilt entsprechend. Die Auskünfte dürfen auch im automatisierten Abrufverfahren erteilt werden, soweit dieses Verfahren unter Berücksichtigung der schutzwürdigen Interessen der Betroffenen und der Geschäftszwecke der zum Abruf berechtigten Stellen angemessen ist.
(5) Die Kammern dürfen die Abdrucke in Listen zusammenfassen oder hiermit Dritte beauftragen; sie haben diese bei der Durchführung des Auftrags zu beaufsichtigen. Die Listen dürfen den Mitgliedern von Kammern auf Antrag zum laufenden Bezug überlassen werden. Für den Bezug der Listen gelten Absatz 2 Nr. 3 und Absatz 3 entsprechend. Die Bezieher der Listen dürfen Auskünfte nur jemandem erteilen, dessen Belange sie kraft Gesetzes oder Vertrages wahrzunehmen haben.
(6) Für Abdrucke, Listen und Aufzeichnungen über eine Eintragung im Schuldnerverzeichnis, die auf der Verarbeitung von Abdrucken oder Listen oder auf Auskünften über Eintragungen im Schuldnerverzeichnis beruhen, gilt § 882e Abs. 1 entsprechend. Über vorzeitige Löschungen (§ 882e Abs. 3) sind die Bezieher von Abdrucken innerhalb eines Monats zu unterrichten. Sie unterrichten unverzüglich die Bezieher von Listen (Absatz 5 Satz 2). In den auf Grund der Abdrucke und Listen erstellten Aufzeichnungen sind die Eintragungen unverzüglich zu löschen. Listen sind auch unverzüglich zu vernichten, soweit sie durch neue ersetzt werden.
(7) In den Fällen des Absatzes 2 Nr. 2 und 3 sowie des Absatzes 5 gilt für nichtöffentliche Stellen § 38 des Bundesdatenschutzgesetzes mit der Maßgabe, dass die Aufsichtsbehörde auch die Verarbeitung und Nutzung dieser personenbezogenen Daten in oder aus Akten überwacht.Entsprechendes gilt für nichtöffentliche Stellen, die von den in Absatz 2 genannten Stellen Auskünfte erhalten haben.
(8) Das Bundesministerium der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates 1. Vorschriften über den Bezug von Abdrucken nach den Absätzen 1 und 2 und das Bewilligungsverfahren
sowie den Bezug von Listen nach Absatz 5 zu erlassen; 2. Einzelheiten der Einrichtung und Ausgestaltung automatisierter Abrufverfahren nach Absatz 4 Satz 4,
insbesondere der Protokollierung der Abrufe für Zwecke der Datenschutzkontrolle, zu regeln; 3. die Erteilung und Aufbewahrung von Abdrucken aus dem Schuldnerverzeichnis, die Anfertigung,
Verwendung und Weitergabe von Listen, die Mitteilung und den Vollzug von Löschungen und den Ausschluss vom Bezug von Abdrucken und Listen näher zu regeln, um die ordnungsgemäße Behandlung der Mitteilungen, den Schutz vor unbefugter Verwendung und die rechtzeitige Löschung von Eintragungen sicherzustellen;
4. zur Durchsetzung der Vernichtungs- und Löschungspflichten im Fall des Widerrufs der Bewilligung die Verhängung von Zwangsgeldern vorzusehen; das einzelne Zwangsgeld darf den Betrag von 25 000 Euro nicht übersteigen.
§ 882h Zuständigkeit; Ausgestaltung des Schuldnerverzeichnisses
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(1) Das Schuldnerverzeichnis wird für jedes Land von einem zentralen Vollstreckungsgericht geführt. Der Inhalt des Schuldnerverzeichnisses kann über eine zentrale und länderübergreifende Abfrage im Internet eingesehen werden. Die Länder können Einzug und Verteilung der Gebühren sowie weitere Abwicklungsaufgaben im Zusammenhang mit der Abfrage nach Satz 2 auf die zuständige Stelle eines Landes übertragen.
(2) Die Landesregierungen bestimmen durch Rechtsverordnung, welches Gericht die Aufgaben des zentralen Vollstreckungsgerichts nach Absatz 1 wahrzunehmen hat. § 802k Abs. 3 Satz 2 und 3 gilt entsprechend. Die Führung des Schuldnerverzeichnisses stellt eine Angelegenheit der Justizverwaltung dar.
(3) Das Bundesministerium der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates die Einzelheiten zu Form und Übermittlung der Eintragungsanordnungen nach § 882b Abs. 1 und der Entscheidungen nach § 882d Abs. 3 Satz 2 dieses Gesetzes und § 284 Abs. 10 Satz 2 der Abgabenordnung oder gleichwertigen Regelungen im Sinne von § 882b Abs. 1 Nr. 2 Halbsatz 2 dieses Gesetzes sowie zum Inhalt des Schuldnerverzeichnisses und zur Ausgestaltung der Einsicht insbesondere durch ein automatisiertes Abrufverfahren zu regeln. Die Rechtsverordnung hat geeignete Regelungen zur Sicherung des Datenschutzes und der Datensicherheit vorzusehen. Insbesondere ist sicherzustellen, dass die Daten 1. bei der elektronischen Übermittlung an das zentrale Vollstreckungsgericht nach Absatz 1 sowie bei der
Weitergabe an eine andere Stelle nach Absatz 2 Satz 2 gegen unbefugte Kenntnisnahme geschützt sind, 2. unversehrt und vollständig wiedergegeben werden, 3. jederzeit ihrem Ursprung nach zugeordnet werden können und 4. nur von registrierten Nutzern nach Angabe des Verwendungszwecks abgerufen werden können, jeder
Abrufvorgang protokolliert wird und Nutzer im Fall des missbräuchlichen Datenabrufs oder einer missbräuchlichen Datenverwendung von der Einsichtnahme ausgeschlossen werden können.
Die Daten der Nutzer dürfen nur für die in Satz 3 Nr. 4 genannten Zwecke verwendet werden.
Abschnitt 3 Zwangsvollstreckung zur Erwirkung der Herausgabe von Sachen und zur Erwirkung von Handlungen oder Unterlassungen § 883 Herausgabe bestimmter beweglicher Sachen
(1) Hat der Schuldner eine bewegliche Sache oder eine Menge bestimmter beweglicher Sachen herauszugeben, so sind sie von dem Gerichtsvollzieher ihm wegzunehmen und dem Gläubiger zu übergeben.
(2) Wird die herauszugebende Sache nicht vorgefunden, so ist der Schuldner verpflichtet, auf Antrag des Gläubigers zu Protokoll an Eides statt zu versichern, dass er die Sache nicht besitze, auch nicht wisse, wo die Sache sich befinde. Der gemäß § 802e zuständige Gerichtsvollzieher lädt den Schuldner zur Abgabe der eidesstattlichen Versicherung. Die Vorschriften der §§ 478 bis 480, 483, 802f Abs. 4, §§ 802g bis 802i und 802j Abs. 1 und 2 gelten entsprechend.
(3) Das Gericht kann eine der Sachlage entsprechende Änderung der eidesstattlichen Versicherung beschließen.
(4) (weggefallen)
§ 884 Leistung einer bestimmten Menge vertretbarer Sachen
Hat der Schuldner eine bestimmte Menge vertretbarer Sachen oder Wertpapiere zu leisten, so gilt die Vorschrift des § 883 Abs. 1 entsprechend.
§ 885 Herausgabe von Grundstücken oder Schiffen
(1) Hat der Schuldner eine unbewegliche Sache oder ein eingetragenes Schiff oder Schiffsbauwerk herauszugeben, zu überlassen oder zu räumen, so hat der Gerichtsvollzieher den Schuldner aus dem Besitz zu setzen und den Gläubiger in den Besitz einzuweisen. Der Gerichtsvollzieher hat den Schuldner aufzufordern, eine Anschrift zum Zweck von Zustellungen oder einen Zustellungsbevollmächtigten zu benennen.
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(2) Bewegliche Sachen, die nicht Gegenstand der Zwangsvollstreckung sind, werden von dem Gerichtsvollzieher weggeschafft und dem Schuldner oder, wenn dieser abwesend ist, einem Bevollmächtigten des Schuldners, einem erwachsenen Familienangehörigen, einer in der Familie beschäftigten Person oder einem erwachsenen ständigen Mitbewohner übergeben oder zur Verfügung gestellt.
(3) Ist weder der Schuldner noch eine der bezeichneten Personen anwesend oder wird die Entgegennahme verweigert, hat der Gerichtsvollzieher die in Absatz 2 bezeichneten Sachen auf Kosten des Schuldners in die Pfandkammer zu schaffen oder anderweitig in Verwahrung zu bringen. Bewegliche Sachen, an deren Aufbewahrung offensichtlich kein Interesse besteht, sollen unverzüglich vernichtet werden.
(4) Fordert der Schuldner die Sachen nicht binnen einer Frist von einem Monat nach der Räumung ab, veräußert der Gerichtsvollzieher die Sachen und hinterlegt den Erlös. Der Gerichtsvollzieher veräußert die Sachen und hinterlegt den Erlös auch dann, wenn der Schuldner die Sachen binnen einer Frist von einem Monat abfordert, ohne binnen einer Frist von zwei Monaten nach der Räumung die Kosten zu zahlen. Die §§ 806, 814 und 817 sind entsprechend anzuwenden. Sachen, die nicht verwertet werden können, sollen vernichtet werden.
(5) Unpfändbare Sachen und solche Sachen, bei denen ein Verwertungserlös nicht zu erwarten ist, sind auf Verlangen des Schuldners jederzeit ohne Weiteres herauszugeben.
§ 885a Beschränkter Vollstreckungsauftrag
(1) Der Vollstreckungsauftrag kann auf die Maßnahmen nach § 885 Absatz 1 beschränkt werden.
(2) Der Gerichtsvollzieher hat in dem Protokoll (§ 762) die frei ersichtlichen beweglichen Sachen zu dokumentieren, die er bei der Vornahme der Vollstreckungshandlung vorfindet. Er kann bei der Dokumentation Bildaufnahmen in elektronischer Form herstellen.
(3) Der Gläubiger kann bewegliche Sachen, die nicht Gegenstand der Zwangsvollstreckung sind, jederzeit wegschaffen und hat sie zu verwahren. Bewegliche Sachen, an deren Aufbewahrung offensichtlich kein Interesse besteht, kann er jederzeit vernichten. Der Gläubiger hat hinsichtlich der Maßnahmen nach den Sätzen 1 und 2 nur Vorsatz und grobe Fahrlässigkeit zu vertreten.
(4) Fordert der Schuldner die Sachen beim Gläubiger nicht binnen einer Frist von einem Monat nach der Einweisung des Gläubigers in den Besitz ab, kann der Gläubiger die Sachen verwerten. Die §§ 372 bis 380, 382, 383 und 385 des Bürgerlichen Gesetzbuchs sind entsprechend anzuwenden. Eine Androhung der Versteigerung findet nicht statt. Sachen, die nicht verwertet werden können, können vernichtet werden.
(5) Unpfändbare Sachen und solche Sachen, bei denen ein Verwertungserlös nicht zu erwarten ist, sind auf Verlangen des Schuldners jederzeit ohne Weiteres herauszugeben.
(6) Mit der Mitteilung des Räumungstermins weist der Gerichtsvollzieher den Gläubiger und den Schuldner auf die Bestimmungen der Absätze 2 bis 5 hin.
(7) Die Kosten nach den Absätzen 3 und 4 gelten als Kosten der Zwangsvollstreckung.
§ 886 Herausgabe bei Gewahrsam eines Dritten
Befindet sich eine herauszugebende Sache im Gewahrsam eines Dritten, so ist dem Gläubiger auf dessen Antrag der Anspruch des Schuldners auf Herausgabe der Sache nach den Vorschriften zu überweisen, welche die Pfändung und Überweisung einer Geldforderung betreffen.
§ 887 Vertretbare Handlungen
(1) Erfüllt der Schuldner die Verpflichtung nicht, eine Handlung vorzunehmen, deren Vornahme durch einen Dritten erfolgen kann, so ist der Gläubiger von dem Prozessgericht des ersten Rechtszuges auf Antrag zu ermächtigen, auf Kosten des Schuldners die Handlung vornehmen zu lassen.
(2) Der Gläubiger kann zugleich beantragen, den Schuldner zur Vorauszahlung der Kosten zu verurteilen, die durch die Vornahme der Handlung entstehen werden, unbeschadet des Rechts auf eine Nachforderung, wenn die Vornahme der Handlung einen größeren Kostenaufwand verursacht.
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(3) Auf die Zwangsvollstreckung zur Erwirkung der Herausgabe oder Leistung von Sachen sind die vorstehenden Vorschriften nicht anzuwenden.
§ 888 Nicht vertretbare Handlungen
(1) Kann eine Handlung durch einen Dritten nicht vorgenommen werden, so ist, wenn sie ausschließlich von dem Willen des Schuldners abhängt, auf Antrag von dem Prozessgericht des ersten Rechtszuges zu erkennen, dass der Schuldner zur Vornahme der Handlung durch Zwangsgeld und für den Fall, dass dieses nicht beigetrieben werden kann, durch Zwangshaft oder durch Zwangshaft anzuhalten sei. Das einzelne Zwangsgeld darf den Betrag von 25 000 Euro nicht übersteigen. Für die Zwangshaft gelten die Vorschriften des Zweiten Abschnitts über die Haft entsprechend.
(2) Eine Androhung der Zwangsmittel findet nicht statt.
(3) Diese Vorschriften kommen im Falle der Verurteilung zur Leistung von Diensten aus einem Dienstvertrag nicht zur Anwendung.
§ 888a Keine Handlungsvollstreckung bei Entschädigungspflicht
Ist im Falle des § 510b der Beklagte zur Zahlung einer Entschädigung verurteilt, so ist die Zwangsvollstreckung auf Grund der Vorschriften der §§ 887, 888 ausgeschlossen.
§ 889 Eidesstattliche Versicherung nach bürgerlichem Recht
(1) Ist der Schuldner auf Grund der Vorschriften des bürgerlichen Rechts zur Abgabe einer eidesstattlichen Versicherung verurteilt, so wird die Versicherung vor dem Amtsgericht als Vollstreckungsgericht abgegeben, in dessen Bezirk der Schuldner im Inland seinen Wohnsitz oder in Ermangelung eines solchen seinen Aufenthaltsort hat, sonst vor dem Amtsgericht als Vollstreckungsgericht, in dessen Bezirk das Prozessgericht des ersten Rechtszuges seinen Sitz hat. Die Vorschriften der §§ 478 bis 480, 483 gelten entsprechend.
(2) Erscheint der Schuldner in dem zur Abgabe der eidesstattlichen Versicherung bestimmten Termin nicht oder verweigert er die Abgabe der eidesstattlichen Versicherung, so verfährt das Vollstreckungsgericht nach § 888.
§ 890 Erzwingung von Unterlassungen und Duldungen
(1) Handelt der Schuldner der Verpflichtung zuwider, eine Handlung zu unterlassen oder die Vornahme einer Handlung zu dulden, so ist er wegen einer jeden Zuwiderhandlung auf Antrag des Gläubigers von dem Prozessgericht des ersten Rechtszuges zu einem Ordnungsgeld und für den Fall, dass dieses nicht beigetrieben werden kann, zur Ordnungshaft oder zur Ordnungshaft bis zu sechs Monaten zu verurteilen. Das einzelne Ordnungsgeld darf den Betrag von 250.000 Euro, die Ordnungshaft insgesamt zwei Jahre nicht übersteigen.
(2) Der Verurteilung muss eine entsprechende Androhung vorausgehen, die, wenn sie in dem die Verpflichtung aussprechenden Urteil nicht enthalten ist, auf Antrag von dem Prozessgericht des ersten Rechtszuges erlassen wird.
(3) Auch kann der Schuldner auf Antrag des Gläubigers zur Bestellung einer Sicherheit für den durch fernere Zuwiderhandlungen entstehenden Schaden auf bestimmte Zeit verurteilt werden.
§ 891 Verfahren; Anhörung des Schuldners; Kostenentscheidung
Die nach den §§ 887 bis 890 zu erlassenden Entscheidungen ergehen durch Beschluss. Vor der Entscheidung ist der Schuldner zu hören. Für die Kostenentscheidung gelten die §§ 91 bis 93, 95 bis 100, 106, 107 entsprechend.
§ 892 Widerstand des Schuldners
Leistet der Schuldner Widerstand gegen die Vornahme einer Handlung, die er nach den Vorschriften der §§ 887, 890 zu dulden hat, so kann der Gläubiger zur Beseitigung des Widerstandes einen Gerichtsvollzieher zuziehen, der nach den Vorschriften des § 758 Abs. 3 und des § 759 zu verfahren hat.
§ 892a (weggefallen)
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§ 893 Klage auf Leistung des Interesses
(1) Durch die Vorschriften dieses Abschnitts wird das Recht des Gläubigers nicht berührt, die Leistung des Interesses zu verlangen.
(2) Den Anspruch auf Leistung des Interesses hat der Gläubiger im Wege der Klage bei dem Prozessgericht des ersten Rechtszuges geltend zu machen.
§ 894 Fiktion der Abgabe einer Willenserklärung
Ist der Schuldner zur Abgabe einer Willenserklärung verurteilt, so gilt die Erklärung als abgegeben, sobald das Urteil die Rechtskraft erlangt hat. Ist die Willenserklärung von einer Gegenleistung abhängig gemacht, so tritt diese Wirkung ein, sobald nach den Vorschriften der §§ 726, 730 eine vollstreckbare Ausfertigung des rechtskräftigen Urteils erteilt ist.
§ 895 Willenserklärung zwecks Eintragung bei vorläufig vollstreckbarem Urteil
Ist durch ein vorläufig vollstreckbares Urteil der Schuldner zur Abgabe einer Willenserklärung verurteilt, auf Grund deren eine Eintragung in das Grundbuch, das Schiffsregister oder das Schiffsbauregister erfolgen soll, so gilt die Eintragung einer Vormerkung oder eines Widerspruchs als bewilligt. Die Vormerkung oder der Widerspruch erlischt, wenn das Urteil durch eine vollstreckbare Entscheidung aufgehoben wird.
§ 896 Erteilung von Urkunden an Gläubiger
Soll auf Grund eines Urteils, das eine Willenserklärung des Schuldners ersetzt, eine Eintragung in ein öffentliches Buch oder Register vorgenommen werden, so kann der Gläubiger an Stelle des Schuldners die Erteilung der im § 792 bezeichneten Urkunden verlangen, soweit er dieser Urkunden zur Herbeiführung der Eintragung bedarf.
§ 897 Übereignung; Verschaffung von Grundpfandrechten
(1) Ist der Schuldner zur Übertragung des Eigentums oder zur Bestellung eines Rechts an einer beweglichen Sache verurteilt, so gilt die Übergabe der Sache als erfolgt, wenn der Gerichtsvollzieher die Sache zum Zwecke der Ablieferung an den Gläubiger wegnimmt.
(2) Das Gleiche gilt, wenn der Schuldner zur Bestellung einer Hypothek, Grundschuld oder Rentenschuld oder zur Abtretung oder Belastung einer Hypothekenforderung, Grundschuld oder Rentenschuld verurteilt ist, für die Übergabe des Hypotheken-, Grundschuld- oder Rentenschuldbriefs.
§ 898 Gutgläubiger Erwerb
Auf einen Erwerb, der sich nach den §§ 894, 897 vollzieht, sind die Vorschriften des bürgerlichen Rechts zugunsten derjenigen, die Rechte von einem Nichtberechtigten herleiten, anzuwenden.
Abschnitt 4 (weggefallen) §§ 899 bis 915h (weggefallen)
Abschnitt 5 Arrest und einstweilige Verfügung § 916 Arrestanspruch
(1) Der Arrest findet zur Sicherung der Zwangsvollstreckung in das bewegliche oder unbewegliche Vermögen wegen einer Geldforderung oder wegen eines Anspruchs statt, der in eine Geldforderung übergehen kann.
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(2) Die Zulässigkeit des Arrestes wird nicht dadurch ausgeschlossen, dass der Anspruch betagt oder bedingt ist, es sei denn, dass der bedingte Anspruch wegen der entfernten Möglichkeit des Eintritts der Bedingung einen gegenwärtigen Vermögenswert nicht hat.
§ 917 Arrestgrund bei dinglichem Arrest
(1) Der dingliche Arrest findet statt, wenn zu besorgen ist, dass ohne dessen Verhängung die Vollstreckung des Urteils vereitelt oder wesentlich erschwert werden würde.
(2) Als ein zureichender Arrestgrund ist es anzusehen, wenn das Urteil im Ausland vollstreckt werden müsste und die Gegenseitigkeit nicht verbürgt ist. Eines Arrestgrundes bedarf es nicht, wenn der Arrest nur zur Sicherung der Zwangsvollstreckung in ein Schiff stattfindet.
§ 918 Arrestgrund bei persönlichem Arrest
Der persönliche Sicherheitsarrest findet nur statt, wenn er erforderlich ist, um die gefährdete Zwangsvollstreckung in das Vermögen des Schuldners zu sichern.
§ 919 Arrestgericht
Für die Anordnung des Arrestes ist sowohl das Gericht der Hauptsache als das Amtsgericht zuständig, in dessen Bezirk der mit Arrest zu belegende Gegenstand oder die in ihrer persönlichen Freiheit zu beschränkende Person sich befindet.
§ 920 Arrestgesuch
(1) Das Gesuch soll die Bezeichnung des Anspruchs unter Angabe des Geldbetrages oder des Geldwertes sowie die Bezeichnung des Arrestgrundes enthalten.
(2) Der Anspruch und der Arrestgrund sind glaubhaft zu machen.
(3) Das Gesuch kann vor der Geschäftsstelle zu Protokoll erklärt werden.
§ 921 Entscheidung über das Arrestgesuch
Das Gericht kann, auch wenn der Anspruch oder der Arrestgrund nicht glaubhaft gemacht ist, den Arrest anordnen, sofern wegen der dem Gegner drohenden Nachteile Sicherheit geleistet wird. Es kann die Anordnung des Arrestes von einer Sicherheitsleistung abhängig machen, selbst wenn der Anspruch und der Arrestgrund glaubhaft gemacht sind.
§ 922 Arresturteil und Arrestbeschluss
(1) Die Entscheidung über das Gesuch ergeht im Falle einer mündlichen Verhandlung durch Endurteil, andernfalls durch Beschluss. Die Entscheidung, durch die der Arrest angeordnet wird, ist zu begründen, wenn sie im Ausland geltend gemacht werden soll.
(2) Den Beschluss, durch den ein Arrest angeordnet wird, hat die Partei, die den Arrest erwirkt hat, zustellen zu lassen.
(3) Der Beschluss, durch den das Arrestgesuch zurückgewiesen oder vorherige Sicherheitsleistung für erforderlich erklärt wird, ist dem Gegner nicht mitzuteilen.
§ 923 Abwendungsbefugnis
In dem Arrestbefehl ist ein Geldbetrag festzustellen, durch dessen Hinterlegung die Vollziehung des Arrestes gehemmt und der Schuldner zu dem Antrag auf Aufhebung des vollzogenen Arrestes berechtigt wird.
§ 924 Widerspruch
(1) Gegen den Beschluss, durch den ein Arrest angeordnet wird, findet Widerspruch statt.
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(2) Die widersprechende Partei hat in dem Widerspruch die Gründe darzulegen, die sie für die Aufhebung des Arrestes geltend machen will. Das Gericht hat Termin zur mündlichen Verhandlung von Amts wegen zu bestimmen. Ist das Arrestgericht ein Amtsgericht, so ist der Widerspruch unter Angabe der Gründe, die für die Aufhebung des Arrestes geltend gemacht werden sollen, schriftlich oder zum Protokoll der Geschäftsstelle zu erheben.
(3) Durch Erhebung des Widerspruchs wird die Vollziehung des Arrestes nicht gehemmt. Das Gericht kann aber eine einstweilige Anordnung nach § 707 treffen; § 707 Abs. 1 Satz 2 ist nicht anzuwenden.
§ 925 Entscheidung nach Widerspruch
(1) Wird Widerspruch erhoben, so ist über die Rechtmäßigkeit des Arrestes durch Endurteil zu entscheiden.
(2) Das Gericht kann den Arrest ganz oder teilweise bestätigen, abändern oder aufheben, auch die Bestätigung, Abänderung oder Aufhebung von einer Sicherheitsleistung abhängig machen.
§ 926 Anordnung der Klageerhebung
(1) Ist die Hauptsache nicht anhängig, so hat das Arrestgericht auf Antrag ohne mündliche Verhandlung anzuordnen, dass die Partei, die den Arrestbefehl erwirkt hat, binnen einer zu bestimmenden Frist Klage zu erheben habe.
(2) Wird dieser Anordnung nicht Folge geleistet, so ist auf Antrag die Aufhebung des Arrestes durch Endurteil auszusprechen.
§ 927 Aufhebung wegen veränderter Umstände
(1) Auch nach der Bestätigung des Arrestes kann wegen veränderter Umstände, insbesondere wegen Erledigung des Arrestgrundes oder auf Grund des Erbietens zur Sicherheitsleistung die Aufhebung des Arrestes beantragt werden.
(2) Die Entscheidung ist durch Endurteil zu erlassen; sie ergeht durch das Gericht, das den Arrest angeordnet hat, und wenn die Hauptsache anhängig ist, durch das Gericht der Hauptsache.
§ 928 Vollziehung des Arrestes
Auf die Vollziehung des Arrestes sind die Vorschriften über die Zwangsvollstreckung entsprechend anzuwenden, soweit nicht die nachfolgenden Paragraphen abweichende Vorschriften enthalten.
§ 929 Vollstreckungsklausel; Vollziehungsfrist
(1) Arrestbefehle bedürfen der Vollstreckungsklausel nur, wenn die Vollziehung für einen anderen als den in dem Befehl bezeichneten Gläubiger oder gegen einen anderen als den in dem Befehl bezeichneten Schuldner erfolgen soll.
(2) Die Vollziehung des Arrestbefehls ist unstatthaft, wenn seit dem Tag, an dem der Befehl verkündet oder der Partei, auf deren Gesuch er erging, zugestellt ist, ein Monat verstrichen ist.
(3) Die Vollziehung ist vor der Zustellung des Arrestbefehls an den Schuldner zulässig. Sie ist jedoch ohne Wirkung, wenn die Zustellung nicht innerhalb einer Woche nach der Vollziehung und vor Ablauf der für diese im vorhergehenden Absatz bestimmten Frist erfolgt.
§ 930 Vollziehung in bewegliches Vermögen und Forderungen
(1) Die Vollziehung des Arrestes in bewegliches Vermögen wird durch Pfändung bewirkt. Die Pfändung erfolgt nach denselben Grundsätzen wie jede andere Pfändung und begründet ein Pfandrecht mit den im § 804 bestimmten Wirkungen. Für die Pfändung einer Forderung ist das Arrestgericht als Vollstreckungsgericht zuständig.
(2) Gepfändetes Geld und ein im Verteilungsverfahren auf den Gläubiger fallender Betrag des Erlöses werden hinterlegt.
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(3) Das Vollstreckungsgericht kann auf Antrag anordnen, dass eine bewegliche körperliche Sache, wenn sie der Gefahr einer beträchtlichen Wertverringerung ausgesetzt ist oder wenn ihre Aufbewahrung unverhältnismäßige Kosten verursachen würde, versteigert und der Erlös hinterlegt werde.
(4) Die Vollziehung des Arrestes in ein nicht eingetragenes Seeschiff ist unzulässig, wenn sich das Schiff auf der Reise befindet und nicht in einem Hafen liegt.
§ 931 Vollziehung in eingetragenes Schiff oder Schiffsbauwerk
(1) Die Vollziehung des Arrestes in ein eingetragenes Schiff oder Schiffsbauwerk wird durch Pfändung nach den Vorschriften über die Pfändung beweglicher Sachen mit folgenden Abweichungen bewirkt.
(2) Die Pfändung begründet ein Pfandrecht an dem gepfändeten Schiff oder Schiffsbauwerk; das Pfandrecht gewährt dem Gläubiger im Verhältnis zu anderen Rechten dieselben Rechte wie eine Schiffshypothek.
(3) Die Pfändung wird auf Antrag des Gläubigers vom Arrestgericht als Vollstreckungsgericht angeordnet; das Gericht hat zugleich das Registergericht um die Eintragung einer Vormerkung zur Sicherung des Arrestpfandrechts in das Schiffsregister oder Schiffsbauregister zu ersuchen; die Vormerkung erlischt, wenn die Vollziehung des Arrestes unstatthaft wird.
(4) Der Gerichtsvollzieher hat bei der Vornahme der Pfändung das Schiff oder Schiffsbauwerk in Bewachung und Verwahrung zu nehmen.
(5) Ist zur Zeit der Arrestvollziehung die Zwangsversteigerung des Schiffes oder Schiffsbauwerks eingeleitet, so gilt die in diesem Verfahren erfolgte Beschlagnahme des Schiffes oder Schiffsbauwerks als erste Pfändung im Sinne des § 826; die Abschrift des Pfändungsprotokolls ist dem Vollstreckungsgericht einzureichen.
(6) Das Arrestpfandrecht wird auf Antrag des Gläubigers in das Schiffsregister oder Schiffsbauregister eingetragen; der nach § 923 festgestellte Geldbetrag ist als der Höchstbetrag zu bezeichnen, für den das Schiff oder Schiffsbauwerk haftet. Im Übrigen gelten der § 867 Abs. 1 und 2 und der § 870a Abs. 3 entsprechend, soweit nicht vorstehend etwas anderes bestimmt ist.
(7) Die Vollziehung des Arrestes in ein eingetragenes Seeschiff ist unzulässig, wenn sich das Schiff auf der Reise befindet und nicht in einem Hafen liegt.
§ 932 Arresthypothek
(1) Die Vollziehung des Arrestes in ein Grundstück oder in eine Berechtigung, für welche die sich auf Grundstücke beziehenden Vorschriften gelten, erfolgt durch Eintragung einer Sicherungshypothek für die Forderung; der nach § 923 festgestellte Geldbetrag ist als der Höchstbetrag zu bezeichnen, für den das Grundstück oder die Berechtigung haftet. Ein Anspruch nach § 1179a oder § 1179b des Bürgerlichen Gesetzbuchs steht dem Gläubiger oder im Grundbuch eingetragenen Gläubiger der Sicherungshypothek nicht zu.
(2) Im Übrigen gelten die Vorschriften des § 866 Abs. 3 Satz 1, des § 867 Abs. 1 und 2 und des § 868.
(3) Der Antrag auf Eintragung der Hypothek gilt im Sinne des § 929 Abs. 2, 3 als Vollziehung des Arrestbefehls.
§ 933 Vollziehung des persönlichen Arrestes
Die Vollziehung des persönlichen Sicherheitsarrestes richtet sich, wenn sie durch Haft erfolgt, nach den Vorschriften der §§ 802g, 802h und 802j Abs. 1 und 2 und, wenn sie durch sonstige Beschränkung der persönlichen Freiheit erfolgt, nach den vom Arrestgericht zu treffenden besonderen Anordnungen, für welche die Beschränkungen der Haft maßgebend sind. In den Haftbefehl ist der nach § 923 festgestellte Geldbetrag aufzunehmen.
§ 934 Aufhebung der Arrestvollziehung
(1) Wird der in dem Arrestbefehl festgestellte Geldbetrag hinterlegt, so wird der vollzogene Arrest von dem Vollstreckungsgericht aufgehoben.
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(2) Das Vollstreckungsgericht kann die Aufhebung des Arrestes auch anordnen, wenn die Fortdauer besondere Aufwendungen erfordert und die Partei, auf deren Gesuch der Arrest verhängt wurde, den nötigen Geldbetrag nicht vorschießt.
(3) Die in diesem Paragraphen erwähnten Entscheidungen ergehen durch Beschluss.
(4) Gegen den Beschluss, durch den der Arrest aufgehoben wird, findet sofortige Beschwerde statt.
§ 935 Einstweilige Verfügung bezüglich Streitgegenstand
Einstweilige Verfügungen in Bezug auf den Streitgegenstand sind zulässig, wenn zu besorgen ist, dass durch eine Veränderung des bestehenden Zustandes die Verwirklichung des Rechts einer Partei vereitelt oder wesentlich erschwert werden könnte.
§ 936 Anwendung der Arrestvorschriften
Auf die Anordnung einstweiliger Verfügungen und das weitere Verfahren sind die Vorschriften über die Anordnung von Arresten und über das Arrestverfahren entsprechend anzuwenden, soweit nicht die nachfolgenden Paragraphen abweichende Vorschriften enthalten.
§ 937 Zuständiges Gericht
(1) Für den Erlass einstweiliger Verfügungen ist das Gericht der Hauptsache zuständig.
(2) Die Entscheidung kann in dringenden Fällen sowie dann, wenn der Antrag auf Erlass einer einstweiligen Verfügung zurückzuweisen ist, ohne mündliche Verhandlung ergehen.
§ 938 Inhalt der einstweiligen Verfügung
(1) Das Gericht bestimmt nach freiem Ermessen, welche Anordnungen zur Erreichung des Zweckes erforderlich sind.
(2) Die einstweilige Verfügung kann auch in einer Sequestration sowie darin bestehen, dass dem Gegner eine Handlung geboten oder verboten, insbesondere die Veräußerung, Belastung oder Verpfändung eines Grundstücks oder eines eingetragenen Schiffes oder Schiffsbauwerks untersagt wird.
§ 939 Aufhebung gegen Sicherheitsleistung
Nur unter besonderen Umständen kann die Aufhebung einer einstweiligen Verfügung gegen Sicherheitsleistung gestattet werden.
§ 940 Einstweilige Verfügung zur Regelung eines einstweiligen Zustandes
Einstweilige Verfügungen sind auch zum Zwecke der Regelung eines einstweiligen Zustandes in Bezug auf ein streitiges Rechtsverhältnis zulässig, sofern diese Regelung, insbesondere bei dauernden Rechtsverhältnissen zur Abwendung wesentlicher Nachteile oder zur Verhinderung drohender Gewalt oder aus anderen Gründen nötig erscheint.
§ 940a Räumung von Wohnraum
(1) Die Räumung von Wohnraum darf durch einstweilige Verfügung nur wegen verbotener Eigenmacht oder bei einer konkreten Gefahr für Leib oder Leben angeordnet werden.
(2) Die Räumung von Wohnraum darf durch einstweilige Verfügung auch gegen einen Dritten angeordnet werden, der im Besitz der Mietsache ist, wenn gegen den Mieter ein vollstreckbarer Räumungstitel vorliegt und der Vermieter vom Besitzerwerb des Dritten erst nach dem Schluss der mündlichen Verhandlung Kenntnis erlangt hat.
(3) Ist Räumungsklage wegen Zahlungsverzugs erhoben, darf die Räumung von Wohnraum durch einstweilige Verfügung auch angeordnet werden, wenn der Beklagte einer Sicherungsanordnung (§ 283a) im Hauptsacheverfahren nicht Folge leistet.
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(4) In den Fällen der Absätze 2 und 3 hat das Gericht den Gegner vor Erlass einer Räumungsverfügung anzuhören.
§ 941 Ersuchen um Eintragungen im Grundbuch usw.
Hat auf Grund der einstweiligen Verfügung eine Eintragung in das Grundbuch, das Schiffsregister oder das Schiffsbauregister zu erfolgen, so ist das Gericht befugt, das Grundbuchamt oder die Registerbehörde um die Eintragung zu ersuchen.
§ 942 Zuständigkeit des Amtsgerichts der belegenen Sache
(1) In dringenden Fällen kann das Amtsgericht, in dessen Bezirk sich der Streitgegenstand befindet, eine einstweilige Verfügung erlassen unter Bestimmung einer Frist, innerhalb der die Ladung des Gegners zur mündlichen Verhandlung über die Rechtmäßigkeit der einstweiligen Verfügung bei dem Gericht der Hauptsache zu beantragen ist.
(2) Die einstweilige Verfügung, auf Grund deren eine Vormerkung oder ein Widerspruch gegen die Richtigkeit des Grundbuchs, des Schiffsregisters oder des Schiffsbauregisters eingetragen werden soll, kann von dem Amtsgericht erlassen werden, in dessen Bezirk das Grundstück belegen ist oder der Heimathafen oder der Heimatort des Schiffes oder der Bauort des Schiffsbauwerks sich befindet, auch wenn der Fall nicht für dringlich erachtet wird; liegt der Heimathafen des Schiffes nicht im Inland, so kann die einstweilige Verfügung vom Amtsgericht in Hamburg erlassen werden. Die Bestimmung der im Absatz 1 bezeichneten Frist hat nur auf Antrag des Gegners zu erfolgen.
(3) Nach fruchtlosem Ablauf der Frist hat das Amtsgericht auf Antrag die erlassene Verfügung aufzuheben.
(4) Die in diesem Paragraphen erwähnten Entscheidungen des Amtsgerichts ergehen durch Beschluss.
§ 943 Gericht der Hauptsache
(1) Als Gericht der Hauptsache im Sinne der Vorschriften dieses Abschnitts ist das Gericht des ersten Rechtszuges und, wenn die Hauptsache in der Berufungsinstanz anhängig ist, das Berufungsgericht anzusehen.
(2) Das Gericht der Hauptsache ist für die nach § 109 zu treffenden Anordnungen ausschließlich zuständig, wenn die Hauptsache anhängig ist oder anhängig gewesen ist.
§ 944 Entscheidung des Vorsitzenden bei Dringlichkeit
In dringenden Fällen kann der Vorsitzende über die in diesem Abschnitt erwähnten Gesuche, sofern deren Erledigung eine mündliche Verhandlung nicht erfordert, anstatt des Gerichts entscheiden.
§ 945 Schadensersatzpflicht
Erweist sich die Anordnung eines Arrestes oder einer einstweiligen Verfügung als von Anfang an ungerechtfertigt oder wird die angeordnete Maßregel auf Grund des § 926 Abs. 2 oder des § 942 Abs. 3 aufgehoben, so ist die Partei, welche die Anordnung erwirkt hat, verpflichtet, dem Gegner den Schaden zu ersetzen, der ihm aus der Vollziehung der angeordneten Maßregel oder dadurch entsteht, dass er Sicherheit leistet, um die Vollziehung abzuwenden oder die Aufhebung der Maßregel zu erwirken.
§§ 946 bis 1024 (weggefallen)
Buch 10 Schiedsrichterliches Verfahren
Abschnitt 1 Allgemeine Vorschriften § 1025 Anwendungsbereich
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(1) Die Vorschriften dieses Buches sind anzuwenden, wenn der Ort des schiedsrichterlichen Verfahrens im Sinne des § 1043 Abs. 1 in Deutschland liegt.
(2) Die Bestimmungen der §§ 1032, 1033 und 1050 sind auch dann anzuwenden, wenn der Ort des schiedsrichterlichen Verfahrens im Ausland liegt oder noch nicht bestimmt ist.
(3) Solange der Ort des schiedsrichterlichen Verfahrens noch nicht bestimmt ist, sind die deutschen Gerichte für die Ausübung der in den §§ 1034, 1035, 1037 und 1038 bezeichneten gerichtlichen Aufgaben zuständig, wenn der Beklagte oder der Kläger seinen Sitz oder seinen gewöhnlichen Aufenthalt in Deutschland hat.
(4) Für die Anerkennung und Vollstreckung ausländischer Schiedssprüche gelten die §§ 1061 bis 1065.
§ 1026 Umfang gerichtlicher Tätigkeit
Ein Gericht darf in den in den §§ 1025 bis 1061 geregelten Angelegenheiten nur tätig werden, soweit dieses Buch es vorsieht.
§ 1027 Verlust des Rügerechts
Ist einer Bestimmung dieses Buches, von der die Parteien abweichen können, oder einem vereinbarten Erfordernis des schiedsrichterlichen Verfahrens nicht entsprochen worden, so kann eine Partei, die den Mangel nicht unverzüglich oder innerhalb einer dafür vorgesehenen Frist rügt, diesen später nicht mehr geltend machen. Dies gilt nicht, wenn der Partei der Mangel nicht bekannt war.
§ 1028 Empfang schriftlicher Mitteilungen bei unbekanntem Aufenthalt
(1) Ist der Aufenthalt einer Partei oder einer zur Entgegennahme berechtigten Person unbekannt, gelten, sofern die Parteien nichts anderes vereinbart haben, schriftliche Mitteilungen an dem Tag als empfangen, an dem sie bei ordnungsgemäßer Übermittlung durch Einschreiben gegen Rückschein oder auf eine andere Weise, welche den Zugang an der letztbekannten Postanschrift oder Niederlassung oder dem letztbekannten gewöhnlichen Aufenthalt des Adressaten belegt, dort hätten empfangen werden können.
(2) Absatz 1 ist auf Mitteilungen in gerichtlichen Verfahren nicht anzuwenden.
Abschnitt 2 Schiedsvereinbarung § 1029 Begriffsbestimmung
(1) Schiedsvereinbarung ist eine Vereinbarung der Parteien, alle oder einzelne Streitigkeiten, die zwischen ihnen in Bezug auf ein bestimmtes Rechtsverhältnis vertraglicher oder nichtvertraglicher Art entstanden sind oder künftig entstehen, der Entscheidung durch ein Schiedsgericht zu unterwerfen.
(2) Eine Schiedsvereinbarung kann in Form einer selbständigen Vereinbarung (Schiedsabrede) oder in Form einer Klausel in einem Vertrag (Schiedsklausel) geschlossen werden.
§ 1030 Schiedsfähigkeit
(1) Jeder vermögensrechtliche Anspruch kann Gegenstand einer Schiedsvereinbarung sein. Eine Schiedsvereinbarung über nichtvermögensrechtliche Ansprüche hat insoweit rechtliche Wirkung, als die Parteien berechtigt sind, über den Gegenstand des Streites einen Vergleich zu schließen.
(2) Eine Schiedsvereinbarung über Rechtsstreitigkeiten, die den Bestand eines Mietverhältnisses über Wohnraum im Inland betreffen, ist unwirksam. Dies gilt nicht, soweit es sich um Wohnraum der in § 549 Abs. 2 Nr. 1 bis 3 des Bürgerlichen Gesetzbuchs bestimmten Art handelt.
(3) Gesetzliche Vorschriften außerhalb dieses Buches, nach denen Streitigkeiten einem schiedsrichterlichen Verfahren nicht oder nur unter bestimmten Voraussetzungen unterworfen werden dürfen, bleiben unberührt.
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§ 1031 Form der Schiedsvereinbarung
(1) Die Schiedsvereinbarung muss entweder in einem von den Parteien unterzeichneten Dokument oder in zwischen ihnen gewechselten Schreiben, Fernkopien, Telegrammen oder anderen Formen der Nachrichtenübermittlung, die einen Nachweis der Vereinbarung sicherstellen, enthalten sein.
(2) Die Form des Absatzes 1 gilt auch dann als erfüllt, wenn die Schiedsvereinbarung in einem von der einen Partei der anderen Partei oder von einem Dritten beiden Parteien übermittelten Dokument enthalten ist und der Inhalt des Dokuments im Falle eines nicht rechtzeitig erfolgten Widerspruchs nach der Verkehrssitte als Vertragsinhalt angesehen wird.
(3) Nimmt ein den Formerfordernissen des Absatzes 1 oder 2 entsprechender Vertrag auf ein Dokument Bezug, das eine Schiedsklausel enthält, so begründet dies eine Schiedsvereinbarung, wenn die Bezugnahme dergestalt ist, dass sie diese Klausel zu einem Bestandteil des Vertrages macht.
(4) (weggefallen)
(5) Schiedsvereinbarungen, an denen ein Verbraucher beteiligt ist, müssen in einer von den Parteien eigenhändig unterzeichneten Urkunde enthalten sein. Die schriftliche Form nach Satz 1 kann durch die elektronische Form nach § 126a des Bürgerlichen Gesetzbuchs ersetzt werden. Andere Vereinbarungen als solche, die sich auf das schiedsrichterliche Verfahren beziehen, darf die Urkunde oder das elektronische Dokument nicht enthalten; dies gilt nicht bei notarieller Beurkundung.
(6) Der Mangel der Form wird durch die Einlassung auf die schiedsgerichtliche Verhandlung zur Hauptsache geheilt.
§ 1032 Schiedsvereinbarung und Klage vor Gericht
(1) Wird vor einem Gericht Klage in einer Angelegenheit erhoben, die Gegenstand einer Schiedsvereinbarung ist, so hat das Gericht die Klage als unzulässig abzuweisen, sofern der Beklagte dies vor Beginn der mündlichen Verhandlung zur Hauptsache rügt, es sei denn, das Gericht stellt fest, dass die Schiedsvereinbarung nichtig, unwirksam oder undurchführbar ist.
(2) Bei Gericht kann bis zur Bildung des Schiedsgerichts Antrag auf Feststellung der Zulässigkeit oder Unzulässigkeit eines schiedsrichterlichen Verfahrens gestellt werden.
(3) Ist ein Verfahren im Sinne des Absatzes 1 oder 2 anhängig, kann ein schiedsrichterliches Verfahren gleichwohl eingeleitet oder fortgesetzt werden und ein Schiedsspruch ergehen.
§ 1033 Schiedsvereinbarung und einstweilige gerichtliche Maßnahmen
Eine Schiedsvereinbarung schließt nicht aus, dass ein Gericht vor oder nach Beginn des schiedsrichterlichen Verfahrens auf Antrag einer Partei eine vorläufige oder sichernde Maßnahme in Bezug auf den Streitgegenstand des schiedsrichterlichen Verfahrens anordnet.
Abschnitt 3 Bildung des Schiedsgerichts § 1034 Zusammensetzung des Schiedsgerichts
(1) Die Parteien können die Anzahl der Schiedsrichter vereinbaren. Fehlt eine solche Vereinbarung, so ist die Zahl der Schiedsrichter drei.
(2) Gibt die Schiedsvereinbarung einer Partei bei der Zusammensetzung des Schiedsgerichts ein Übergewicht, das die andere Partei benachteiligt, so kann diese Partei bei Gericht beantragen, den oder die Schiedsrichter abweichend von der erfolgten Ernennung oder der vereinbarten Ernennungsregelung zu bestellen. Der Antrag ist spätestens bis zum Ablauf von zwei Wochen, nachdem der Partei die Zusammensetzung des Schiedsgerichts bekannt geworden ist, zu stellen. § 1032 Abs. 3 gilt entsprechend.
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§ 1035 Bestellung der Schiedsrichter
(1) Die Parteien können das Verfahren zur Bestellung des Schiedsrichters oder der Schiedsrichter vereinbaren.
(2) Sofern die Parteien nichts anderes vereinbart haben, ist eine Partei an die durch sie erfolgte Bestellung eines Schiedsrichters gebunden, sobald die andere Partei die Mitteilung über die Bestellung empfangen hat.
(3) Fehlt eine Vereinbarung der Parteien über die Bestellung der Schiedsrichter, wird ein Einzelschiedsrichter, wenn die Parteien sich über seine Bestellung nicht einigen können, auf Antrag einer Partei durch das Gericht bestellt. In schiedsrichterlichen Verfahren mit drei Schiedsrichtern bestellt jede Partei einen Schiedsrichter; diese beiden Schiedsrichter bestellen den dritten Schiedsrichter, der als Vorsitzender des Schiedsgerichts tätig wird. Hat eine Partei den Schiedsrichter nicht innerhalb eines Monats nach Empfang einer entsprechenden Aufforderung durch die andere Partei bestellt oder können sich die beiden Schiedsrichter nicht binnen eines Monats nach ihrer Bestellung über den dritten Schiedsrichter einigen, so ist der Schiedsrichter auf Antrag einer Partei durch das Gericht zu bestellen.
(4) Haben die Parteien ein Verfahren für die Bestellung vereinbart und handelt eine Partei nicht entsprechend diesem Verfahren oder können die Parteien oder die beiden Schiedsrichter eine Einigung entsprechend diesem Verfahren nicht erzielen oder erfüllt ein Dritter eine ihm nach diesem Verfahren übertragene Aufgabe nicht, so kann jede Partei bei Gericht die Anordnung der erforderlichen Maßnahmen beantragen, sofern das vereinbarte Bestellungsverfahren zur Sicherung der Bestellung nichts anderes vorsieht.
(5) Das Gericht hat bei der Bestellung eines Schiedsrichters alle nach der Parteivereinbarung für den Schiedsrichter vorgeschriebenen Voraussetzungen zu berücksichtigen und allen Gesichtspunkten Rechnung zu tragen, die die Bestellung eines unabhängigen und unparteiischen Schiedsrichters sicherstellen. Bei der Bestellung eines Einzelschiedsrichters oder eines dritten Schiedsrichters hat das Gericht auch die Zweckmäßigkeit der Bestellung eines Schiedsrichters mit einer anderen Staatsangehörigkeit als derjenigen der Parteien in Erwägung zu ziehen.
§ 1036 Ablehnung eines Schiedsrichters
(1) Eine Person, der ein Schiedsrichteramt angetragen wird, hat alle Umstände offen zu legen, die Zweifel an ihrer Unparteilichkeit oder Unabhängigkeit wecken können. Ein Schiedsrichter ist auch nach seiner Bestellung bis zum Ende des schiedsrichterlichen Verfahrens verpflichtet, solche Umstände den Parteien unverzüglich offen zu legen, wenn er sie ihnen nicht schon vorher mitgeteilt hat.
(2) Ein Schiedsrichter kann nur abgelehnt werden, wenn Umstände vorliegen, die berechtigte Zweifel an seiner Unparteilichkeit oder Unabhängigkeit aufkommen lassen, oder wenn er die zwischen den Parteien vereinbarten Voraussetzungen nicht erfüllt. Eine Partei kann einen Schiedsrichter, den sie bestellt oder an dessen Bestellung sie mitgewirkt hat, nur aus Gründen ablehnen, die ihr erst nach der Bestellung bekannt geworden sind.
§ 1037 Ablehnungsverfahren
(1) Die Parteien können vorbehaltlich des Absatzes 3 ein Verfahren für die Ablehnung eines Schiedsrichters vereinbaren.
(2) Fehlt eine solche Vereinbarung, so hat die Partei, die einen Schiedsrichter ablehnen will, innerhalb von zwei Wochen, nachdem ihr die Zusammensetzung des Schiedsgerichts oder ein Umstand im Sinne des § 1036 Abs. 2 bekannt geworden ist, dem Schiedsgericht schriftlich die Ablehnungsgründe darzulegen. Tritt der abgelehnte Schiedsrichter von seinem Amt nicht zurück oder stimmt die andere Partei der Ablehnung nicht zu, so entscheidet das Schiedsgericht über die Ablehnung.
(3) Bleibt die Ablehnung nach dem von den Parteien vereinbarten Verfahren oder nach dem in Absatz 2 vorgesehenen Verfahren erfolglos, so kann die ablehnende Partei innerhalb eines Monats, nachdem sie von der Entscheidung, mit der die Ablehnung verweigert wurde, Kenntnis erlangt hat, bei Gericht eine Entscheidung über die Ablehnung beantragen; die Parteien können eine andere Frist vereinbaren. Während ein solcher Antrag anhängig ist, kann das Schiedsgericht einschließlich des abgelehnten Schiedsrichters das schiedsrichterliche Verfahren fortsetzen und einen Schiedsspruch erlassen.
§ 1038 Untätigkeit oder Unmöglichkeit der Aufgabenerfüllung
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(1) Ist ein Schiedsrichter rechtlich oder tatsächlich außerstande, seine Aufgaben zu erfüllen, oder kommt er aus anderen Gründen seinen Aufgaben in angemessener Frist nicht nach, so endet sein Amt, wenn er zurücktritt oder wenn die Parteien die Beendigung seines Amtes vereinbaren. Tritt der Schiedsrichter von seinem Amt nicht zurück oder können sich die Parteien über dessen Beendigung nicht einigen, kann jede Partei bei Gericht eine Entscheidung über die Beendigung des Amtes beantragen.
(2) Tritt ein Schiedsrichter in den Fällen des Absatzes 1 oder des § 1037 Abs. 2 zurück oder stimmt eine Partei der Beendigung des Schiedsrichteramtes zu, so bedeutet dies nicht die Anerkennung der in Absatz 1 oder § 1036 Abs. 2 genannten Rücktrittsgründe.
§ 1039 Bestellung eines Ersatzschiedsrichters
(1) Endet das Amt eines Schiedsrichters nach den §§ 1037, 1038 oder wegen seines Rücktritts vom Amt aus einem anderen Grund oder wegen der Aufhebung seines Amtes durch Vereinbarung der Parteien, so ist ein Ersatzschiedsrichter zu bestellen. Die Bestellung erfolgt nach den Regeln, die auf die Bestellung des zu ersetzenden Schiedsrichters anzuwenden waren.
(2) Die Parteien können eine abweichende Vereinbarung treffen.
Abschnitt 4 Zuständigkeit des Schiedsgerichts § 1040 Befugnis des Schiedsgerichts zur Entscheidung über die eigene Zuständigkeit
(1) Das Schiedsgericht kann über die eigene Zuständigkeit und im Zusammenhang hiermit über das Bestehen oder die Gültigkeit der Schiedsvereinbarung entscheiden. Hierbei ist eine Schiedsklausel als eine von den übrigen Vertragsbestimmungen unabhängige Vereinbarung zu behandeln.
(2) Die Rüge der Unzuständigkeit des Schiedsgerichts ist spätestens mit der Klagebeantwortung vorzubringen. Von der Erhebung einer solchen Rüge ist eine Partei nicht dadurch ausgeschlossen, dass sie einen Schiedsrichter bestellt oder an der Bestellung eines Schiedsrichters mitgewirkt hat. Die Rüge, das Schiedsgericht überschreite seine Befugnisse, ist zu erheben, sobald die Angelegenheit, von der dies behauptet wird, im schiedsrichterlichen Verfahren zur Erörterung kommt. Das Schiedsgericht kann in beiden Fällen eine spätere Rüge zulassen, wenn die Partei die Verspätung genügend entschuldigt.
(3) Hält das Schiedsgericht sich für zuständig, so entscheidet es über eine Rüge nach Absatz 2 in der Regel durch Zwischenentscheid. In diesem Fall kann jede Partei innerhalb eines Monats nach schriftlicher Mitteilung des Entscheids eine gerichtliche Entscheidung beantragen. Während ein solcher Antrag anhängig ist, kann das Schiedsgericht das schiedsrichterliche Verfahren fortsetzen und einen Schiedsspruch erlassen.
§ 1041 Maßnahmen des einstweiligen Rechtsschutzes
(1) Haben die Parteien nichts anderes vereinbart, so kann das Schiedsgericht auf Antrag einer Partei vorläufige oder sichernde Maßnahmen anordnen, die es in Bezug auf den Streitgegenstand für erforderlich hält. Das Schiedsgericht kann von jeder Partei im Zusammenhang mit einer solchen Maßnahme angemessene Sicherheit verlangen.
(2) Das Gericht kann auf Antrag einer Partei die Vollziehung einer Maßnahme nach Absatz 1 zulassen, sofern nicht schon eine entsprechende Maßnahme des einstweiligen Rechtsschutzes bei einem Gericht beantragt worden ist. Es kann die Anordnung abweichend fassen, wenn dies zur Vollziehung der Maßnahme notwendig ist.
(3) Auf Antrag kann das Gericht den Beschluss nach Absatz 2 aufheben oder ändern.
(4) Erweist sich die Anordnung einer Maßnahme nach Absatz 1 als von Anfang an ungerechtfertigt, so ist die Partei, welche ihre Vollziehung erwirkt hat, verpflichtet, dem Gegner den Schaden zu ersetzen, der ihm aus der Vollziehung der Maßnahme oder dadurch entsteht, dass er Sicherheit leistet, um die Vollziehung abzuwenden. Der Anspruch kann im anhängigen schiedsrichterlichen Verfahren geltend gemacht werden.
Abschnitt 5
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Durchführung des schiedsrichterlichen Verfahrens § 1042 Allgemeine Verfahrensregeln
(1) Die Parteien sind gleich zu behandeln. Jeder Partei ist rechtliches Gehör zu gewähren.
(2) Rechtsanwälte dürfen als Bevollmächtigte nicht ausgeschlossen werden.
(3) Im Übrigen können die Parteien vorbehaltlich der zwingenden Vorschriften dieses Buches das Verfahren selbst oder durch Bezugnahme auf eine schiedsrichterliche Verfahrensordnung regeln.
(4) Soweit eine Vereinbarung der Parteien nicht vorliegt und dieses Buch keine Regelung enthält, werden die Verfahrensregeln vom Schiedsgericht nach freiem Ermessen bestimmt. Das Schiedsgericht ist berechtigt, über die Zulässigkeit einer Beweiserhebung zu entscheiden, diese durchzuführen und das Ergebnis frei zu würdigen.
§ 1043 Ort des schiedsrichterlichen Verfahrens
(1) Die Parteien können eine Vereinbarung über den Ort des schiedsrichterlichen Verfahrens treffen. Fehlt eine solche Vereinbarung, so wird der Ort des schiedsrichterlichen Verfahrens vom Schiedsgericht bestimmt. Dabei sind die Umstände des Falles einschließlich der Eignung des Ortes für die Parteien zu berücksichtigen.
(2) Haben die Parteien nichts anderes vereinbart, so kann das Schiedsgericht ungeachtet des Absatzes 1 an jedem ihm geeignet erscheinenden Ort zu einer mündlichen Verhandlung, zur Vernehmung von Zeugen, Sachverständigen oder der Parteien, zur Beratung zwischen seinen Mitgliedern, zur Besichtigung von Sachen oder zur Einsichtnahme in Dokumente zusammentreten.
§ 1044 Beginn des schiedsrichterlichen Verfahrens
Haben die Parteien nichts anderes vereinbart, so beginnt das schiedsrichterliche Verfahren über eine bestimmte Streitigkeit mit dem Tag, an dem der Beklagte den Antrag, die Streitigkeit einem Schiedsgericht vorzulegen, empfangen hat. Der Antrag muss die Bezeichnung der Parteien, die Angabe des Streitgegenstandes und einen Hinweis auf die Schiedsvereinbarung enthalten.
§ 1045 Verfahrenssprache
(1) Die Parteien können die Sprache oder die Sprachen, die im schiedsrichterlichen Verfahren zu verwenden sind, vereinbaren. Fehlt eine solche Vereinbarung, so bestimmt hierüber das Schiedsgericht. Die Vereinbarung der Parteien oder die Bestimmung des Schiedsgerichts ist, sofern darin nichts anderes vorgesehen wird, für schriftliche Erklärungen einer Partei, mündliche Verhandlungen, Schiedssprüche, sonstige Entscheidungen und andere Mitteilungen des Schiedsgerichts maßgebend.
(2) Das Schiedsgericht kann anordnen, dass schriftliche Beweismittel mit einer Übersetzung in die Sprache oder die Sprachen versehen sein müssen, die zwischen den Parteien vereinbart oder vom Schiedsgericht bestimmt worden sind.
§ 1046 Klage und Klagebeantwortung
(1) Innerhalb der von den Parteien vereinbarten oder vom Schiedsgericht bestimmten Frist hat der Kläger seinen Anspruch und die Tatsachen, auf die sich dieser Anspruch stützt, darzulegen und der Beklagte hierzu Stellung zu nehmen. Die Parteien können dabei alle ihnen erheblich erscheinenden Dokumente vorlegen oder andere Beweismittel bezeichnen, derer sie sich bedienen wollen.
(2) Haben die Parteien nichts anderes vereinbart, so kann jede Partei im Laufe des schiedsrichterlichen Verfahrens ihre Klage oder ihre Angriffs- und Verteidigungsmittel ändern oder ergänzen, es sei denn, das Schiedsgericht lässt dies wegen Verspätung, die nicht genügend entschuldigt wird, nicht zu.
(3) Die Absätze 1 und 2 gelten für die Widerklage entsprechend.
§ 1047 Mündliche Verhandlung und schriftliches Verfahren
(1) Vorbehaltlich einer Vereinbarung der Parteien entscheidet das Schiedsgericht, ob mündlich verhandelt werden soll oder ob das Verfahren auf der Grundlage von Dokumenten und anderen Unterlagen durchzuführen
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ist. Haben die Parteien die mündliche Verhandlung nicht ausgeschlossen, hat das Schiedsgericht eine solche Verhandlung in einem geeigneten Abschnitt des Verfahrens durchzuführen, wenn eine Partei es beantragt.
(2) Die Parteien sind von jeder Verhandlung und jedem Zusammentreffen des Schiedsgerichts zu Zwecken der Beweisaufnahme rechtzeitig in Kenntnis zu setzen.
(3) Alle Schriftsätze, Dokumente und sonstigen Mitteilungen, die dem Schiedsgericht von einer Partei vorgelegt werden, sind der anderen Partei, Gutachten und andere schriftliche Beweismittel, auf die sich das Schiedsgericht bei seiner Entscheidung stützen kann, sind beiden Parteien zur Kenntnis zu bringen.
§ 1048 Säumnis einer Partei
(1) Versäumt es der Kläger, seine Klage nach § 1046 Abs. 1 einzureichen, so beendet das Schiedsgericht das Verfahren.
(2) Versäumt es der Beklagte, die Klage nach § 1046 Abs. 1 zu beantworten, so setzt das Schiedsgericht das Verfahren fort, ohne die Säumnis als solche als Zugeständnis der Behauptungen des Klägers zu behandeln.
(3) Versäumt es eine Partei, zu einer mündlichen Verhandlung zu erscheinen oder innerhalb einer festgelegten Frist ein Dokument zum Beweis vorzulegen, so kann das Schiedsgericht das Verfahren fortsetzen und den Schiedsspruch nach den vorliegenden Erkenntnissen erlassen.
(4) Wird die Säumnis nach Überzeugung des Schiedsgerichts genügend entschuldigt, bleibt sie außer Betracht. Im Übrigen können die Parteien über die Folgen der Säumnis etwas anderes vereinbaren.
§ 1049 Vom Schiedsgericht bestellter Sachverständiger
(1) Haben die Parteien nichts anderes vereinbart, so kann das Schiedsgericht einen oder mehrere Sachverständige zur Erstattung eines Gutachtens über bestimmte vom Schiedsgericht festzulegende Fragen bestellen. Es kann ferner eine Partei auffordern, dem Sachverständigen jede sachdienliche Auskunft zu erteilen oder alle für das Verfahren erheblichen Dokumente oder Sachen zur Besichtigung vorzulegen oder zugänglich zu machen.
(2) Haben die Parteien nichts anderes vereinbart, so hat der Sachverständige, wenn eine Partei dies beantragt oder das Schiedsgericht es für erforderlich hält, nach Erstattung seines schriftlichen oder mündlichen Gutachtens an einer mündlichen Verhandlung teilzunehmen. Bei der Verhandlung können die Parteien dem Sachverständigen Fragen stellen und eigene Sachverständige zu den streitigen Fragen aussagen lassen.
(3) Auf den vom Schiedsgericht bestellten Sachverständigen sind die §§ 1036, 1037 Abs. 1 und 2 entsprechend anzuwenden.
§ 1050 Gerichtliche Unterstützung bei der Beweisaufnahme und sonstige richterliche Handlungen
Das Schiedsgericht oder eine Partei mit Zustimmung des Schiedsgerichts kann bei Gericht Unterstützung bei der Beweisaufnahme oder die Vornahme sonstiger richterlicher Handlungen, zu denen das Schiedsgericht nicht befugt ist, beantragen. Das Gericht erledigt den Antrag, sofern es ihn nicht für unzulässig hält, nach seinen für die Beweisaufnahme oder die sonstige richterliche Handlung geltenden Verfahrensvorschriften. Die Schiedsrichter sind berechtigt, an einer gerichtlichen Beweisaufnahme teilzunehmen und Fragen zu stellen.
Abschnitt 6 Schiedsspruch und Beendigung des Verfahrens § 1051 Anwendbares Recht
(1) Das Schiedsgericht hat die Streitigkeit in Übereinstimmung mit den Rechtsvorschriften zu entscheiden, die von den Parteien als auf den Inhalt des Rechtsstreits anwendbar bezeichnet worden sind. Die Bezeichnung des Rechts oder der Rechtsordnung eines bestimmten Staates ist, sofern die Parteien nicht ausdrücklich etwas anderes vereinbart haben, als unmittelbare Verweisung auf die Sachvorschriften dieses Staates und nicht auf sein Kollisionsrecht zu verstehen.
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(2) Haben die Parteien die anzuwendenden Rechtsvorschriften nicht bestimmt, so hat das Schiedsgericht das Recht des Staates anzuwenden, mit dem der Gegenstand des Verfahrens die engsten Verbindungen aufweist.
(3) Das Schiedsgericht hat nur dann nach Billigkeit zu entscheiden, wenn die Parteien es ausdrücklich dazu ermächtigt haben. Die Ermächtigung kann bis zur Entscheidung des Schiedsgerichts erteilt werden.
(4) In allen Fällen hat das Schiedsgericht in Übereinstimmung mit den Bestimmungen des Vertrages zu entscheiden und dabei bestehende Handelsbräuche zu berücksichtigen.
§ 1052 Entscheidung durch ein Schiedsrichterkollegium
(1) Haben die Parteien nichts anderes vereinbart, so ist in schiedsrichterlichen Verfahren mit mehr als einem Schiedsrichter jede Entscheidung des Schiedsgerichts mit Mehrheit der Stimmen aller Mitglieder zu treffen.
(2) Verweigert ein Schiedsrichter die Teilnahme an einer Abstimmung, können die übrigen Schiedsrichter ohne ihn entscheiden, sofern die Parteien nichts anderes vereinbart haben. Die Absicht, ohne den verweigernden Schiedsrichter über den Schiedsspruch abzustimmen, ist den Parteien vorher mitzuteilen. Bei anderen Entscheidungen sind die Parteien von der Abstimmungsverweigerung nachträglich in Kenntnis zu setzen.
(3) Über einzelne Verfahrensfragen kann der vorsitzende Schiedsrichter allein entscheiden, wenn die Parteien oder die anderen Mitglieder des Schiedsgerichts ihn dazu ermächtigt haben.
§ 1053 Vergleich
(1) Vergleichen sich die Parteien während des schiedsrichterlichen Verfahrens über die Streitigkeit, so beendet das Schiedsgericht das Verfahren. Auf Antrag der Parteien hält es den Vergleich in der Form eines Schiedsspruchs mit vereinbartem Wortlaut fest, sofern der Inhalt des Vergleichs nicht gegen die öffentliche Ordnung (ordre public) verstößt.
(2) Ein Schiedsspruch mit vereinbartem Wortlaut ist gemäß § 1054 zu erlassen und muss angeben, dass es sich um einen Schiedsspruch handelt. Ein solcher Schiedsspruch hat dieselbe Wirkung wie jeder andere Schiedsspruch zur Sache.
(3) Soweit die Wirksamkeit von Erklärungen eine notarielle Beurkundung erfordert, wird diese bei einem Schiedsspruch mit vereinbartem Wortlaut durch die Aufnahme der Erklärungen der Parteien in den Schiedsspruch ersetzt.
(4) Mit Zustimmung der Parteien kann ein Schiedsspruch mit vereinbartem Wortlaut auch von einem Notar, der seinen Amtssitz im Bezirk des nach § 1062 Abs. 1, 2 für die Vollstreckbarerklärung zuständigen Gerichts hat, für vollstreckbar erklärt werden. Der Notar lehnt die Vollstreckbarerklärung ab, wenn die Voraussetzungen des Absatzes 1 Satz 2 nicht vorliegen.
§ 1054 Form und Inhalt des Schiedsspruchs
(1) Der Schiedsspruch ist schriftlich zu erlassen und durch den Schiedsrichter oder die Schiedsrichter zu unterschreiben. In schiedsrichterlichen Verfahren mit mehr als einem Schiedsrichter genügen die Unterschriften der Mehrheit aller Mitglieder des Schiedsgerichts, sofern der Grund für eine fehlende Unterschrift angegeben wird.
(2) Der Schiedsspruch ist zu begründen, es sei denn, die Parteien haben vereinbart, dass keine Begründung gegeben werden muss, oder es handelt sich um einen Schiedsspruch mit vereinbartem Wortlaut im Sinne des § 1053.
(3) Im Schiedsspruch sind der Tag, an dem er erlassen wurde, und der nach § 1043 Abs. 1 bestimmte Ort des schiedsrichterlichen Verfahrens anzugeben. Der Schiedsspruch gilt als an diesem Tag und diesem Ort erlassen.
(4) Jeder Partei ist ein von den Schiedsrichtern unterschriebener Schiedsspruch zu übermitteln.
§ 1055 Wirkungen des Schiedsspruchs
Der Schiedsspruch hat unter den Parteien die Wirkungen eines rechtskräftigen gerichtlichen Urteils.
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§ 1056 Beendigung des schiedsrichterlichen Verfahrens
(1) Das schiedsrichterliche Verfahren wird mit dem endgültigen Schiedsspruch oder mit einem Beschluss des Schiedsgerichts nach Absatz 2 beendet.
(2) Das Schiedsgericht stellt durch Beschluss die Beendigung des schiedsrichterlichen Verfahrens fest, wenn 1. der Kläger
a) es versäumt, seine Klage nach § 1046 Abs. 1 einzureichen und kein Fall des § 1048 Abs. 4 vorliegt, oder b) seine Klage zurücknimmt, es sei denn, dass der Beklagte dem widerspricht und das Schiedsgericht ein
berechtigtes Interesse des Beklagten an der endgültigen Beilegung der Streitigkeit anerkennt; oder
2. die Parteien die Beendigung des Verfahrens vereinbaren; oder 3. die Parteien das schiedsrichterliche Verfahren trotz Aufforderung des Schiedsgerichts nicht weiter betreiben
oder die Fortsetzung des Verfahrens aus einem anderen Grund unmöglich geworden ist.
(3) Vorbehaltlich des § 1057 Abs. 2 und der §§ 1058, 1059 Abs. 4 endet das Amt des Schiedsgerichts mit der Beendigung des schiedsrichterlichen Verfahrens.
§ 1057 Entscheidung über die Kosten
(1) Sofern die Parteien nichts anderes vereinbart haben, hat das Schiedsgericht in einem Schiedsspruch darüber zu entscheiden, zu welchem Anteil die Parteien die Kosten des schiedsrichterlichen Verfahrens einschließlich der den Parteien erwachsenen und zur zweckentsprechenden Rechtsverfolgung notwendigen Kosten zu tragen haben. Hierbei entscheidet das Schiedsgericht nach pflichtgemäßem Ermessen unter Berücksichtigung der Umstände des Einzelfalles, insbesondere des Ausgangs des Verfahrens.
(2) Soweit die Kosten des schiedsrichterlichen Verfahrens feststehen, hat das Schiedsgericht auch darüber zu entscheiden, in welcher Höhe die Parteien diese zu tragen haben. Ist die Festsetzung der Kosten unterblieben oder erst nach Beendigung des schiedsrichterlichen Verfahrens möglich, wird hierüber in einem gesonderten Schiedsspruch entschieden.
§ 1058 Berichtigung, Auslegung und Ergänzung des Schiedsspruchs
(1) Jede Partei kann beim Schiedsgericht beantragen, 1. Rechen-, Schreib- und Druckfehler oder Fehler ähnlicher Art im Schiedsspruch zu berichtigen; 2. bestimmte Teile des Schiedsspruchs auszulegen; 3. einen ergänzenden Schiedsspruch über solche Ansprüche zu erlassen, die im schiedsrichterlichen Verfahren
zwar geltend gemacht, im Schiedsspruch aber nicht behandelt worden sind.
(2) Sofern die Parteien keine andere Frist vereinbart haben, ist der Antrag innerhalb eines Monats nach Empfang des Schiedsspruchs zu stellen.
(3) Das Schiedsgericht soll über die Berichtigung oder Auslegung des Schiedsspruchs innerhalb eines Monats und über die Ergänzung des Schiedsspruchs innerhalb von zwei Monaten entscheiden.
(4) Eine Berichtigung des Schiedsspruchs kann das Schiedsgericht auch ohne Antrag vornehmen.
(5) § 1054 ist auf die Berichtigung, Auslegung oder Ergänzung des Schiedsspruchs anzuwenden.
Abschnitt 7 Rechtsbehelf gegen den Schiedsspruch § 1059 Aufhebungsantrag
(1) Gegen einen Schiedsspruch kann nur der Antrag auf gerichtliche Aufhebung nach den Absätzen 2 und 3 gestellt werden.
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(2) Ein Schiedsspruch kann nur aufgehoben werden, 1. wenn der Antragsteller begründet geltend macht, dass
a) eine der Parteien, die eine Schiedsvereinbarung nach den §§ 1029, 1031 geschlossen haben, nach dem Recht, das für sie persönlich maßgebend ist, hierzu nicht fähig war, oder dass die Schiedsvereinbarung nach dem Recht, dem die Parteien sie unterstellt haben oder, falls die Parteien hierüber nichts bestimmt haben, nach deutschem Recht ungültig ist oder
b) er von der Bestellung eines Schiedsrichters oder von dem schiedsrichterlichen Verfahren nicht gehörig in Kenntnis gesetzt worden ist oder dass er aus einem anderen Grund seine Angriffs- oder Verteidigungsmittel nicht hat geltend machen können oder
c) der Schiedsspruch eine Streitigkeit betrifft, die in der Schiedsabrede nicht erwähnt ist oder nicht unter die Bestimmungen der Schiedsklausel fällt, oder dass er Entscheidungen enthält, welche die Grenzen der Schiedsvereinbarung überschreiten; kann jedoch der Teil des Schiedsspruchs, der sich auf Streitpunkte bezieht, die dem schiedsrichterlichen Verfahren unterworfen waren, von dem Teil, der Streitpunkte betrifft, die ihm nicht unterworfen waren, getrennt werden, so kann nur der letztgenannte Teil des Schiedsspruchs aufgehoben werden; oder
d) die Bildung des Schiedsgerichts oder das schiedsrichterliche Verfahren einer Bestimmung dieses Buches oder einer zulässigen Vereinbarung der Parteien nicht entsprochen hat und anzunehmen ist, dass sich dies auf den Schiedsspruch ausgewirkt hat; oder
2. wenn das Gericht feststellt, dass a) der Gegenstand des Streites nach deutschem Recht nicht schiedsfähig ist oder b) die Anerkennung oder Vollstreckung des Schiedsspruchs zu einem Ergebnis führt, das der öffentlichen
Ordnung (ordre public) widerspricht.
(3) Sofern die Parteien nichts anderes vereinbaren, muss der Aufhebungsantrag innerhalb einer Frist von drei Monaten bei Gericht eingereicht werden. Die Frist beginnt mit dem Tag, an dem der Antragsteller den Schiedsspruch empfangen hat. Ist ein Antrag nach § 1058 gestellt worden, verlängert sich die Frist um höchstens einen Monat nach Empfang der Entscheidung über diesen Antrag. Der Antrag auf Aufhebung des Schiedsspruchs kann nicht mehr gestellt werden, wenn der Schiedsspruch von einem deutschen Gericht für vollstreckbar erklärt worden ist.
(4) Ist die Aufhebung beantragt worden, so kann das Gericht in geeigneten Fällen auf Antrag einer Partei unter Aufhebung des Schiedsspruchs die Sache an das Schiedsgericht zurückverweisen.
(5) Die Aufhebung des Schiedsspruchs hat im Zweifel zur Folge, dass wegen des Streitgegenstandes die Schiedsvereinbarung wiederauflebt.
Abschnitt 8 Voraussetzungen der Anerkennung und Vollstreckung von Schiedssprüchen § 1060 Inländische Schiedssprüche
(1) Die Zwangsvollstreckung findet statt, wenn der Schiedsspruch für vollstreckbar erklärt ist.
(2) Der Antrag auf Vollstreckbarerklärung ist unter Aufhebung des Schiedsspruchs abzulehnen, wenn einer der in § 1059 Abs. 2 bezeichneten Aufhebungsgründe vorliegt. Aufhebungsgründe sind nicht zu berücksichtigen, soweit im Zeitpunkt der Zustellung des Antrags auf Vollstreckbarerklärung ein auf sie gestützter Aufhebungsantrag rechtskräftig abgewiesen ist. Aufhebungsgründe nach § 1059 Abs. 2 Nr. 1 sind auch dann nicht zu berücksichtigen, wenn die in § 1059 Abs. 3 bestimmten Fristen abgelaufen sind, ohne dass der Antragsgegner einen Antrag auf Aufhebung des Schiedsspruchs gestellt hat.
§ 1061 Ausländische Schiedssprüche
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(1) Die Anerkennung und Vollstreckung ausländischer Schiedssprüche richtet sich nach dem Übereinkommen vom 10. Juni 1958 über die Anerkennung und Vollstreckung ausländischer Schiedssprüche (BGBl. 1961 II S. 121). Die Vorschriften in anderen Staatsverträgen über die Anerkennung und Vollstreckung von Schiedssprüchen bleiben unberührt.
(2) Ist die Vollstreckbarerklärung abzulehnen, stellt das Gericht fest, dass der Schiedsspruch im Inland nicht anzuerkennen ist.
(3) Wird der Schiedsspruch, nachdem er für vollstreckbar erklärt worden ist, im Ausland aufgehoben, so kann die Aufhebung der Vollstreckbarerklärung beantragt werden.
Abschnitt 9 Gerichtliches Verfahren § 1062 Zuständigkeit
(1) Das Oberlandesgericht, das in der Schiedsvereinbarung bezeichnet ist oder, wenn eine solche Bezeichnung fehlt, in dessen Bezirk der Ort des schiedsrichterlichen Verfahrens liegt, ist zuständig für Entscheidungen über Anträge betreffend 1. die Bestellung eines Schiedsrichters (§§ 1034, 1035), die Ablehnung eines Schiedsrichters (§ 1037) oder die
Beendigung des Schiedsrichteramtes (§ 1038); 2. die Feststellung der Zulässigkeit oder Unzulässigkeit eines schiedsrichterlichen Verfahrens (§ 1032) oder die
Entscheidung eines Schiedsgerichts, in der dieses seine Zuständigkeit in einem Zwischenentscheid bejaht hat (§ 1040);
3. die Vollziehung, Aufhebung oder Änderung der Anordnung vorläufiger oder sichernder Maßnahmen des Schiedsgerichts (§ 1041);
4. die Aufhebung (§ 1059) oder die Vollstreckbarerklärung des Schiedsspruchs (§§ 1060 ff.) oder die Aufhebung der Vollstreckbarerklärung (§ 1061).
(2) Besteht in den Fällen des Absatzes 1 Nr. 2 erste Alternative, Nr. 3 oder Nr. 4 kein deutscher Schiedsort, so ist für die Entscheidungen das Oberlandesgericht zuständig, in dessen Bezirk der Antragsgegner seinen Sitz oder gewöhnlichen Aufenthalt hat oder sich Vermögen des Antragsgegners oder der mit der Schiedsklage in Anspruch genommene oder von der Maßnahme betroffene Gegenstand befindet, hilfsweise das Kammergericht.
(3) In den Fällen des § 1025 Abs. 3 ist für die Entscheidung das Oberlandesgericht zuständig, in dessen Bezirk der Kläger oder der Beklagte seinen Sitz oder seinen gewöhnlichen Aufenthalt hat.
(4) Für die Unterstützung bei der Beweisaufnahme und sonstige richterliche Handlungen (§ 1050) ist das Amtsgericht zuständig, in dessen Bezirk die richterliche Handlung vorzunehmen ist.
(5) Sind in einem Land mehrere Oberlandesgerichte errichtet, so kann die Zuständigkeit von der Landesregierung durch Rechtsverordnung einem Oberlandesgericht oder dem obersten Landesgericht übertragen werden; die Landesregierung kann die Ermächtigung durch Rechtsverordnung auf die Landesjustizverwaltung übertragen. Mehrere Länder können die Zuständigkeit eines Oberlandesgerichts über die Ländergrenzen hinaus vereinbaren.
§ 1063 Allgemeine Vorschriften
(1) Das Gericht entscheidet durch Beschluss. Vor der Entscheidung ist der Gegner zu hören.
(2) Das Gericht hat die mündliche Verhandlung anzuordnen, wenn die Aufhebung des Schiedsspruchs beantragt wird oder wenn bei einem Antrag auf Anerkennung oder Vollstreckbarerklärung des Schiedsspruchs Aufhebungsgründe nach § 1059 Abs. 2 in Betracht kommen.
(3) Der Vorsitzende des Zivilsenats kann ohne vorherige Anhörung des Gegners anordnen, dass der Antragsteller bis zur Entscheidung über den Antrag die Zwangsvollstreckung aus dem Schiedsspruch betreiben oder die vorläufige oder sichernde Maßnahme des Schiedsgerichts nach § 1041 vollziehen darf. Die Zwangsvollstreckung aus dem Schiedsspruch darf nicht über Maßnahmen zur Sicherung hinausgehen. Der Antragsgegner ist befugt,
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die Zwangsvollstreckung durch Leistung einer Sicherheit in Höhe des Betrages, wegen dessen der Antragsteller vollstrecken kann, abzuwenden.
(4) Solange eine mündliche Verhandlung nicht angeordnet ist, können zu Protokoll der Geschäftsstelle Anträge gestellt und Erklärungen abgegeben werden.
§ 1064 Besonderheiten bei der Vollstreckbarerklärung von Schiedssprüchen
(1) Mit dem Antrag auf Vollstreckbarerklärung eines Schiedsspruchs ist der Schiedsspruch oder eine beglaubigte Abschrift des Schiedsspruchs vorzulegen. Die Beglaubigung kann auch von dem für das gerichtliche Verfahren bevollmächtigten Rechtsanwalt vorgenommen werden.
(2) Der Beschluss, durch den ein Schiedsspruch für vollstreckbar erklärt wird, ist für vorläufig vollstreckbar zu erklären.
(3) Auf ausländische Schiedssprüche sind die Absätze 1 und 2 anzuwenden, soweit Staatsverträge nicht ein anderes bestimmen.
§ 1065 Rechtsmittel
(1) Gegen die in § 1062 Abs. 1 Nr. 2 und 4 genannten Entscheidungen findet die Rechtsbeschwerde statt. Im Übrigen sind die Entscheidungen in den in § 1062 Abs. 1 bezeichneten Verfahren unanfechtbar.
(2) Die Rechtsbeschwerde kann auch darauf gestützt werden, dass die Entscheidung auf einer Verletzung eines Staatsvertrages beruht. Die §§ 707, 717 sind entsprechend anzuwenden.
Abschnitt 10 Außervertragliche Schiedsgerichte § 1066 Entsprechende Anwendung der Vorschriften des Buches 10
Für Schiedsgerichte, die in gesetzlich statthafter Weise durch letztwillige oder andere nicht auf Vereinbarung beruhende Verfügungen angeordnet werden, gelten die Vorschriften dieses Buches entsprechend.
Buch 11 Justizielle Zusammenarbeit in der Europäischen Union
Abschnitt 1 Zustellung nach der Verordnung (EG) Nr. 1393/2007 § 1067 Zustellung durch diplomatische oder konsularische Vertretungen
Eine Zustellung nach Artikel 13 der Verordnung (EG) Nr. 1393/2007 des Europäischen Parlaments und des Rates vom 13. November 2007 über die Zustellung gerichtlicher und außergerichtlicher Schriftstücke in Zivil- oder Handelssachen in den Mitgliedstaaten und zur Aufhebung der Verordnung (EG) Nr. 1348/2000 (ABl. EU Nr. L 324 S. 79), die in der Bundesrepublik Deutschland bewirkt werden soll, ist nur zulässig, wenn der Adressat des zuzustellenden Schriftstücks Staatsangehöriger des Übermittlungsstaats ist.
§ 1068 Zustellung durch die Post
(1) Zum Nachweis der Zustellung nach Artikel 14 der Verordnung (EG) Nr. 1393/2007 genügt der Rückschein oder der gleichwertige Beleg.
(2) Ein Schriftstück, dessen Zustellung eine deutsche Empfangsstelle im Rahmen von Artikel 7 Abs. 1 der Verordnung (EG) Nr. 1393/2007 zu bewirken oder zu veranlassen hat, kann ebenfalls durch Einschreiben mit Rückschein zugestellt werden.
§ 1069 Zuständigkeiten
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(1) Für Zustellungen im Ausland sind als deutsche Übermittlungsstelle im Sinne von Artikel 2 Abs. 1 der Verordnung (EG) Nr. 1393/2007 zuständig: 1. für gerichtliche Schriftstücke das die Zustellung betreibende Gericht und 2. für außergerichtliche Schriftstücke dasjenige Amtsgericht, in dessen Bezirk die Person, welche die Zustellung
betreibt, ihren Wohnsitz oder gewöhnlichen Aufenthalt hat; bei notariellen Urkunden auch dasjenige Amtsgericht, in dessen Bezirk der beurkundende Notar seinen Amtssitz hat; bei juristischen Personen tritt an die Stelle des Wohnsitzes oder des gewöhnlichen Aufenthalts der Sitz; die Landesregierungen können die Aufgaben der Übermittlungsstelle einem Amtsgericht für die Bezirke mehrerer Amtsgerichte durch Rechtsverordnung zuweisen.
(2) Für Zustellungen in der Bundesrepublik Deutschland ist als deutsche Empfangsstelle im Sinne von Artikel 2 Abs. 2 der Verordnung (EG) Nr. 1393/2007 dasjenige Amtsgericht zuständig, in dessen Bezirk das Schriftstück zugestellt werden soll. Die Landesregierungen können die Aufgaben der Empfangsstelle einem Amtsgericht für die Bezirke mehrerer Amtsgerichte durch Rechtsverordnung zuweisen.
(3) Die Landesregierungen bestimmen durch Rechtsverordnung die Stelle, die in dem jeweiligen Land als deutsche Zentralstelle im Sinne von Artikel 3 Satz 1 der Verordnung (EG) Nr. 1393/2007 zuständig ist. Die Aufgaben der Zentralstelle können in jedem Land nur einer Stelle zugewiesen werden.
(4) Die Landesregierungen können die Befugnis zum Erlass einer Rechtsverordnung nach Absatz 1 Nr. 2, Absatz 2 Satz 2 und Absatz 3 Satz 1 einer obersten Landesbehörde übertragen.
§ 1070 (weggefallen)
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§ 1071 (weggefallen)
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Abschnitt 2 Beweisaufnahme nach der Verordnung (EG) Nr. 1206/2001 § 1072 Beweisaufnahme in den Mitgliedstaaten der Europäischen Union
Soll die Beweisaufnahme nach der Verordnung (EG) Nr. 1206/2001 des Rates vom 28. Mai 2001 über die Zusammenarbeit zwischen den Gerichten der Mitgliedstaaten auf dem Gebiet der Beweisaufnahme in Zivil- oder Handelssachen (ABl. EG Nr. L 174 S. 1) erfolgen, so kann das Gericht 1. unmittelbar das zuständige Gericht eines anderen Mitgliedstaats um Aufnahme des Beweises ersuchen oder 2. unter den Voraussetzungen des Artikels 17 der Verordnung (EG) Nr. 1206/2001 eine unmittelbare
Beweisaufnahme in einem anderen Mitgliedstaat beantragen.
§ 1073 Teilnahmerechte
(1) Das ersuchende deutsche Gericht oder ein von diesem beauftragtes Mitglied darf im Geltungsbereich der Verordnung (EG) Nr. 1206/2001 bei der Erledigung des Ersuchens auf Beweisaufnahme durch das ersuchte ausländische Gericht anwesend und beteiligt sein. Parteien, deren Vertreter sowie Sachverständige können sich hierbei in dem Umfang beteiligen, in dem sie in dem betreffenden Verfahren an einer inländischen Beweisaufnahme beteiligt werden dürfen.
(2) Eine unmittelbare Beweisaufnahme im Ausland nach Artikel 17 Abs. 3 der Verordnung (EG) Nr. 1206/2001 dürfen Mitglieder des Gerichts sowie von diesem beauftragte Sachverständige durchführen.
§ 1074 Zuständigkeiten nach der Verordnung (EG) Nr. 1206/2001
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(1) Für Beweisaufnahmen in der Bundesrepublik Deutschland ist als ersuchtes Gericht im Sinne von Artikel 2 Abs. 1 der Verordnung (EG) Nr. 1206/2001 dasjenige Amtsgericht zuständig, in dessen Bezirk die Verfahrenshandlung durchgeführt werden soll.
(2) Die Landesregierungen können die Aufgaben des ersuchten Gerichts einem Amtsgericht für die Bezirke mehrerer Amtsgerichte durch Rechtsverordnung zuweisen.
(3) Die Landesregierungen bestimmen durch Rechtsverordnung die Stelle, die in dem jeweiligen Land 1. als deutsche Zentralstelle im Sinne von Artikel 3 Abs. 1 der Verordnung (EG) Nr. 1206/2001 zuständig ist, 2. als zuständige Stelle Ersuchen auf unmittelbare Beweisaufnahme im Sinne von Artikel 17 Abs. 1 der
Verordnung (EG) Nr. 1206/2001 entgegennimmt. Die Aufgaben nach den Nummern 1 und 2 können in jedem Land nur jeweils einer Stelle zugewiesen werden.
(4) Die Landesregierungen können die Befugnis zum Erlass einer Rechtsverordnung nach den Absätzen 2 und 3 Satz 1 einer obersten Landesbehörde übertragen.
§ 1075 Sprache eingehender Ersuchen
Aus dem Ausland eingehende Ersuchen auf Beweisaufnahme sowie Mitteilungen nach der Verordnung (EG) Nr. 1206/2001 müssen in deutscher Sprache abgefasst oder von einer Übersetzung in die deutsche Sprache begleitet sein.
Abschnitt 3 Prozesskostenhilfe nach der Richtlinie 2003/8/EG § 1076 Anwendbare Vorschriften
Für die grenzüberschreitende Prozesskostenhilfe innerhalb der Europäischen Union nach der Richtlinie 2003/8/EG des Rates vom 27. Januar 2003 zur Verbesserung des Zugangs zum Recht bei Streitsachen mit grenzüberschreitendem Bezug durch Festlegung gemeinsamer Mindestvorschriften für die Prozesskostenhilfe in derartigen Streitsachen (ABl. EG Nr. L 26 S. 41, ABl. EU Nr. L 32 S. 15) gelten die §§ 114 bis 127a, soweit nachfolgend nichts Abweichendes bestimmt ist.
§ 1077 Ausgehende Ersuchen
(1) Für die Entgegennahme und Übermittlung von Anträgen natürlicher Personen auf grenzüberschreitende Prozesskostenhilfe ist das Amtsgericht zuständig, in dessen Bezirk der Antragsteller seinen Wohnsitz oder gewöhnlichen Aufenthalt hat (Übermittlungsstelle). Die Landesregierungen können die Aufgaben der Übermittlungsstelle einem Amtsgericht für die Bezirke mehrerer Amtsgerichte durch Rechtsverordnung zuweisen. Sie können die Ermächtigung durch Rechtsverordnung auf die Landesjustizverwaltungen übertragen. § 21 Satz 1 des Auslandsunterhaltsgesetzes bleibt unberührt.
(2) Das Bundesministerium der Justiz wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates die in Artikel 16 Abs. 1 der Richtlinie 2003/8/EG vorgesehenen Standardformulare für Anträge auf grenzüberschreitende Prozesskostenhilfe und für deren Übermittlung einzuführen. Soweit Standardformulare für Anträge auf grenzüberschreitende Prozesskostenhilfe und für deren Übermittlung eingeführt sind, müssen sich der Antragsteller und die Übermittlungsstelle ihrer bedienen.
(3) Die Übermittlungsstelle kann die Übermittlung durch Beschluss vollständig oder teilweise ablehnen, wenn der Antrag offensichtlich unbegründet ist oder offensichtlich nicht in den Anwendungsbereich der Richtlinie 2003/8/EG fällt. Sie kann von Amts wegen Übersetzungen von dem Antrag beigefügten fremdsprachigen Anlagen fertigen, soweit dies zur Vorbereitung einer Entscheidung nach Satz 1 erforderlich ist. Gegen die ablehnende Entscheidung findet die sofortige Beschwerde nach Maßgabe des § 127 Abs. 2 Satz 2 und 3 statt.
(4) Die Übermittlungsstelle fertigt von Amts wegen Übersetzungen der Eintragungen im Standardformular für Anträge auf Prozesskostenhilfe sowie der beizufügenden Anlagen a) in eine der Amtssprachen des Mitgliedstaats der zuständigen Empfangsstelle, die zugleich einer der
Amtssprachen der Europäischen Union entspricht, oder
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b) in eine andere von diesem Mitgliedstaat zugelassene Sprache. Die Übermittlungsstelle prüft die Vollständigkeit des Antrags und wirkt darauf hin, dass Anlagen, die nach ihrer Kenntnis zur Entscheidung über den Antrag erforderlich sind, beigefügt werden.
(5) Die Übermittlungsstelle übersendet den Antrag und die beizufügenden Anlagen ohne Legalisation oder gleichwertige Förmlichkeiten an die zuständige Empfangsstelle des Mitgliedstaats des Gerichtsstands oder des Vollstreckungsmitgliedstaats. Die Übermittlung erfolgt innerhalb von 14 Tagen nach Vorliegen der gemäß Absatz 4 zu fertigenden Übersetzungen.
(6) Hat die zuständige Stelle des anderen Mitgliedstaats das Ersuchen um Prozesskostenhilfe auf Grund der persönlichen und wirtschaftlichen Verhältnisse des Antragstellers abgelehnt oder eine Ablehnung angekündigt, so stellt die Übermittlungsstelle auf Antrag eine Bescheinigung der Bedürftigkeit aus, wenn der Antragsteller in einem entsprechenden deutschen Verfahren nach § 115 Abs. 1 und 2 als bedürftig anzusehen wäre. Absatz 4 Satz 1 gilt für die Übersetzung der Bescheinigung entsprechend. Die Übermittlungsstelle übersendet der Empfangsstelle des anderen Mitgliedstaats die Bescheinigung der Bedürftigkeit zwecks Ergänzung des ursprünglichen Ersuchens um grenzüberschreitende Prozesskostenhilfe.
§ 1078 Eingehende Ersuchen
(1) Für eingehende Ersuchen um grenzüberschreitende Prozesskostenhilfe ist das Prozessgericht oder das Vollstreckungsgericht zuständig. Die Anträge müssen in deutscher Sprache ausgefüllt und die Anlagen von einer Übersetzung in die deutsche Sprache begleitet sein. Eine Legalisation oder gleichwertige Förmlichkeiten dürfen nicht verlangt werden.
(2) Das Gericht entscheidet über das Ersuchen nach Maßgabe der §§ 114 bis 116. Es übersendet der übermittelnden Stelle eine Abschrift seiner Entscheidung.
(3) Der Antragsteller erhält auch dann grenzüberschreitende Prozesskostenhilfe, wenn er nachweist, dass er wegen unterschiedlich hoher Lebenshaltungskosten im Mitgliedstaat seines Wohnsitzes oder gewöhnlichen Aufenthalts einerseits und im Geltungsbereich dieses Gesetzes andererseits die Kosten der Prozessführung nicht, nur zum Teil oder nur in Raten aufbringen kann.
(4) Wurde grenzüberschreitende Prozesskostenhilfe bewilligt, so gilt für jeden weiteren Rechtszug, der von dem Antragsteller oder dem Gegner eingeleitet wird, ein neuerliches Ersuchen um grenzüberschreitende Prozesskostenhilfe als gestellt. Das Gericht hat dahin zu wirken, dass der Antragsteller die Voraussetzungen für die Bewilligung der grenzüberschreitenden Prozesskostenhilfe für den jeweiligen Rechtszug darlegt.
Abschnitt 4 Europäische Vollstreckungstitel nach der Verordnung (EG) Nr. 805/2004
Titel 1 Bestätigung inländischer Titel als Europäische Vollstreckungstitel § 1079 Zuständigkeit
Für die Ausstellung der Bestätigungen nach 1. Artikel 9 Abs. 1, Artikel 24 Abs. 1, Artikel 25 Abs. 1 und 2. Artikel 6 Abs. 2 und 3 der Verordnung (EG) Nr. 805/2004 des Europäischen Parlaments und des Rates vom 21. April 2004 zur Einführung eines Europäischen Vollstreckungstitels für unbestrittene Forderungen (ABl. EU Nr. L 143 S. 15) sind die Gerichte, Behörden oder Notare zuständig, denen die Erteilung einer vollstreckbaren Ausfertigung des Titels obliegt.
§ 1080 Entscheidung
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(1) Bestätigungen nach Artikel 9 Abs. 1, Artikel 24 Abs. 1, Artikel 25 Abs. 1 und Artikel 6 Abs. 3 der Verordnung (EG) Nr. 805/2004 sind ohne Anhörung des Schuldners auszustellen. Eine Ausfertigung der Bestätigung ist dem Schuldner von Amts wegen zuzustellen.
(2) Wird der Antrag auf Ausstellung einer Bestätigung zurückgewiesen, so sind die Vorschriften über die Anfechtung der Entscheidung über die Erteilung einer Vollstreckungsklausel entsprechend anzuwenden.
§ 1081 Berichtigung und Widerruf
(1) Ein Antrag nach Artikel 10 Abs. 1 der Verordnung (EG) Nr. 805/2004 auf Berichtigung oder Widerruf einer gerichtlichen Bestätigung ist bei dem Gericht zu stellen, das die Bestätigung ausgestellt hat. Über den Antrag entscheidet dieses Gericht. Ein Antrag auf Berichtigung oder Widerruf einer notariellen oder behördlichen Bestätigung ist an die Stelle zu richten, die die Bestätigung ausgestellt hat. Die Notare oder Behörden leiten den Antrag unverzüglich dem Amtsgericht, in dessen Bezirk sie ihren Sitz haben, zur Entscheidung zu.
(2) Der Antrag auf Widerruf durch den Schuldner ist nur binnen einer Frist von einem Monat zulässig. Ist die Bestätigung im Ausland zuzustellen, beträgt die Frist zwei Monate. Sie ist eine Notfrist und beginnt mit der Zustellung der Bestätigung, jedoch frühestens mit der Zustellung des Titels, auf den sich die Bestätigung bezieht. In dem Antrag auf Widerruf sind die Gründe darzulegen, weshalb die Bestätigung eindeutig zu Unrecht erteilt worden ist.
(3) § 319 Abs. 2 und 3 ist auf die Berichtigung und den Widerruf entsprechend anzuwenden.
Titel 2 Zwangsvollstreckung aus Europäischen Vollstreckungstiteln im Inland § 1082 Vollstreckungstitel
Aus einem Titel, der in einem anderen Mitgliedstaat der Europäischen Union nach der Verordnung (EG) Nr. 805/2004 als Europäischer Vollstreckungstitel bestätigt worden ist, findet die Zwangsvollstreckung im Inland statt, ohne dass es einer Vollstreckungsklausel bedarf.
§ 1083 Übersetzung
Hat der Gläubiger nach Artikel 20 Abs. 2 Buchstabe c der Verordnung (EG) Nr. 805/2004 eine Übersetzung vorzulegen, so ist diese in deutscher Sprache zu verfassen und von einer hierzu in einem der Mitgliedstaaten der Europäischen Union befugten Person zu beglaubigen.
§ 1084 Anträge nach den Artikeln 21 und 23 der Verordnung (EG) Nr. 805/2004
(1) Für Anträge auf Verweigerung, Aussetzung oder Beschränkung der Zwangsvollstreckung nach den Artikeln 21 und 23 der Verordnung (EG) Nr. 805/2004 ist das Amtsgericht als Vollstreckungsgericht zuständig. Die Vorschriften des Buches 8 über die örtliche Zuständigkeit des Vollstreckungsgerichts sind entsprechend anzuwenden. Die Zuständigkeit nach den Sätzen 1 und 2 ist ausschließlich.
(2) Die Entscheidung über den Antrag nach Artikel 21 der Verordnung (EG) Nr. 805/2004 ergeht durch Beschluss. Auf die Einstellung der Zwangsvollstreckung und die Aufhebung der bereits getroffenen Vollstreckungsmaßregeln sind § 769 Abs. 1 und 3 sowie § 770 entsprechend anzuwenden. Die Aufhebung einer Vollstreckungsmaßregel ist auch ohne Sicherheitsleistung zulässig.
(3) Über den Antrag auf Aussetzung oder Beschränkung der Vollstreckung nach Artikel 23 der Verordnung (EG) Nr. 805/2004 wird durch einstweilige Anordnung entschieden. Die Entscheidung ist unanfechtbar.
§ 1085 Einstellung der Zwangsvollstreckung
Die Zwangsvollstreckung ist entsprechend den §§ 775 und 776 auch dann einzustellen oder zu beschränken, wenn die Ausfertigung einer Bestätigung über die Nichtvollstreckbarkeit oder über die Beschränkung der Vollstreckbarkeit nach Artikel 6 Abs. 2 der Verordnung (EG) Nr. 805/2004 vorgelegt wird.
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§ 1086 Vollstreckungsabwehrklage
(1) Für Klagen nach § 767 ist das Gericht ausschließlich örtlich zuständig, in dessen Bezirk der Schuldner seinen Wohnsitz hat, oder, wenn er im Inland keinen Wohnsitz hat, das Gericht, in dessen Bezirk die Zwangsvollstreckung stattfinden soll oder stattgefunden hat. Der Sitz von Gesellschaften oder juristischen Personen steht dem Wohnsitz gleich.
(2) § 767 Abs. 2 ist entsprechend auf gerichtliche Vergleiche und öffentliche Urkunden anzuwenden.
Abschnitt 5 Europäisches Mahnverfahren nach der Verordnung (EG) Nr. 1896/2006
Titel 1 Allgemeine Vorschriften § 1087 Zuständigkeit
Für die Bearbeitung von Anträgen auf Erlass und Überprüfung sowie die Vollstreckbarerklärung eines Europäischen Zahlungsbefehls nach der Verordnung (EG) Nr. 1896/2006 des Europäischen Parlaments und des Rates vom 12. Dezember 2006 zur Einführung eines Europäischen Mahnverfahrens (ABl. EU Nr. L 399 S. 1) ist das Amtsgericht Wedding in Berlin ausschließlich zuständig.
§ 1088 Maschinelle Bearbeitung
(1) Der Antrag auf Erlass des Europäischen Zahlungsbefehls und der Einspruch können in einer nur maschinell lesbaren Form bei Gericht eingereicht werden, wenn diese dem Gericht für seine maschinelle Bearbeitung geeignet erscheint. § 130a Abs. 3 gilt entsprechend.
(2) Der Senat des Landes Berlin bestimmt durch Rechtsverordnung, die nicht der Zustimmung des Bundesrates bedarf, den Zeitpunkt, in dem beim Amtsgericht Wedding die maschinelle Bearbeitung der Mahnverfahren eingeführt wird; er kann die Ermächtigung durch Rechtsverordnung auf die Senatsverwaltung für Justiz des Landes Berlin übertragen.
§ 1089 Zustellung
(1) Ist der Europäische Zahlungsbefehl im Inland zuzustellen, gelten die Vorschriften über das Verfahren bei Zustellungen von Amts wegen entsprechend. Die §§ 185 bis 188 sind nicht anzuwenden.
(2) Ist der Europäische Zahlungsbefehl in einem anderen Mitgliedstaat der Europäischen Union zuzustellen, gelten die Vorschriften der Verordnung (EG) Nr. 1393/2007 sowie für die Durchführung § 1068 Abs. 1 und § 1069 Abs. 1 entsprechend.
Titel 2 Einspruch gegen den Europäischen Zahlungsbefehl § 1090 Verfahren nach Einspruch
(1) Im Fall des Artikels 17 Abs. 1 der Verordnung (EG) Nr. 1896/2006 fordert das Gericht den Antragsteller mit der Mitteilung nach Artikel 17 Abs. 3 der Verordnung (EG) Nr. 1896/2006 auf, das Gericht zu bezeichnen, das für die Durchführung des streitigen Verfahrens zuständig ist. Das Gericht setzt dem Antragsteller hierfür eine nach den Umständen angemessene Frist und weist ihn darauf hin, dass dem für die Durchführung des streitigen Verfahrens bezeichneten Gericht die Prüfung seiner Zuständigkeit vorbehalten bleibt. Die Aufforderung ist dem Antragsgegner mitzuteilen.
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(2) Nach Eingang der Mitteilung des Antragstellers nach Absatz 1 Satz 1 gibt das Gericht, das den Europäischen Zahlungsbefehl erlassen hat, das Verfahren von Amts wegen an das vom Antragsteller bezeichnete Gericht ab. § 696 Abs. 1 Satz 3 bis 5, Abs. 2, 4 und 5 sowie § 698 gelten entsprechend.
(3) Die Streitsache gilt als mit Zustellung des Europäischen Zahlungsbefehls rechtshängig geworden, wenn sie nach Übersendung der Aufforderung nach Absatz 1 Satz 1 und unter Berücksichtigung der Frist nach Absatz 1 Satz 2 alsbald abgegeben wird.
§ 1091 Einleitung des Streitverfahrens
§ 697 Abs. 1 bis 3 gilt entsprechend.
Titel 3 Überprüfung des Europäischen Zahlungsbefehls in Ausnahmefällen § 1092 Verfahren
(1) Die Entscheidung über einen Antrag auf Überprüfung des Europäischen Zahlungsbefehls nach Artikel 20 Abs. 1 oder Abs. 2 der Verordnung (EG) Nr. 1896/2006 ergeht durch Beschluss. Der Beschluss ist unanfechtbar.
(2) Der Antragsgegner hat die Tatsachen, die eine Aufhebung des Europäischen Zahlungsbefehls begründen, glaubhaft zu machen.
(3) Erklärt das Gericht den Europäischen Zahlungsbefehl für nichtig, endet das Verfahren nach der Verordnung (EG) Nr. 1896/2006.
(4) Eine Wiedereinsetzung in die Frist nach Artikel 16 Abs. 2 der Verordnung (EG) Nr. 1896/2006 findet nicht statt.
Titel 4 Zwangsvollstreckung aus dem Europäischen Zahlungsbefehl § 1093 Vollstreckungsklausel
Aus einem nach der Verordnung (EG) Nr. 1896/2006 erlassenen und für vollstreckbar erklärten Europäischen Zahlungsbefehl findet die Zwangsvollstreckung im Inland statt, ohne dass es einer Vollstreckungsklausel bedarf.
§ 1094 Übersetzung
Hat der Gläubiger nach Artikel 21 Abs. 2 Buchstabe b der Verordnung (EG) Nr. 1896/2006 eine Übersetzung vorzulegen, so ist diese in deutscher Sprache zu verfassen und von einer in einem der Mitgliedstaaten der Europäischen Union hierzu befugten Person zu beglaubigen.
§ 1095 Vollstreckungsschutz und Vollstreckungsabwehrklage gegen den im Inland erlassenen Europäischen Zahlungsbefehl
(1) Wird die Überprüfung eines im Inland erlassenen Europäischen Zahlungsbefehls nach Artikel 20 der Verordnung (EG) Nr. 1896/2006 beantragt, gilt § 707 entsprechend. Für die Entscheidung über den Antrag nach § 707 ist das Gericht zuständig, das über den Antrag nach Artikel 20 der Verordnung (EG) Nr. 1896/2006 entscheidet.
(2) Einwendungen, die den Anspruch selbst betreffen, sind nur insoweit zulässig, als die Gründe, auf denen sie beruhen, nach Zustellung des Europäischen Zahlungsbefehls entstanden sind und durch Einspruch nach Artikel 16 der Verordnung (EG) Nr. 1896/2006 nicht mehr geltend gemacht werden können.
§ 1096 Anträge nach den Artikeln 22 und 23 der Verordnung (EG) Nr. 1896/2006; Vollstreckungsabwehrklage
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(1) Für Anträge auf Verweigerung der Zwangsvollstreckung nach Artikel 22 Abs. 1 der Verordnung (EG) Nr. 1896/2006 gilt § 1084 Abs. 1 und 2 entsprechend. Für Anträge auf Aussetzung oder Beschränkung der Zwangsvollstreckung nach Artikel 23 der Verordnung (EG) Nr. 1896/2006 ist § 1084 Abs. 1 und 3 entsprechend anzuwenden.
(2) Für Anträge auf Verweigerung der Zwangsvollstreckung nach Artikel 22 Abs. 2 der Verordnung (EG) Nr. 1896/2006 gilt § 1086 Abs. 1 entsprechend. Für Klagen nach § 767 sind § 1086 Abs. 1 und § 1095 Abs. 2 entsprechend anzuwenden.
Abschnitt 6 Europäisches Verfahren für geringfügige Forderungen nach der Verordnung (EG) Nr. 861/2007
Titel 1 Erkenntnisverfahren § 1097 Einleitung und Durchführung des Verfahrens
(1) Die Formblätter gemäß der Verordnung (EG) Nr. 861/2007 des Europäischen Parlaments und des Rates vom 11. Juli 2007 zur Einführung eines europäischen Verfahrens für geringfügige Forderungen (ABl. EU Nr. L 199 S. 1) und andere Anträge oder Erklärungen können als Schriftsatz, als Telekopie oder nach Maßgabe des § 130a als elektronisches Dokument bei Gericht eingereicht werden.
(2) Im Fall des Artikels 4 Abs. 3 der Verordnung (EG) Nr. 861/2007 wird das Verfahren über die Klage ohne Anwendung der Vorschriften der Verordnung (EG) Nr. 861/2007 fortgeführt.
§ 1098 Annahmeverweigerung auf Grund der verwendeten Sprache
Die Frist zur Erklärung der Annahmeverweigerung nach Artikel 6 Abs. 3 der Verordnung (EG) Nr. 861/2007 beträgt eine Woche. Sie ist eine Notfrist und beginnt mit der Zustellung des Schriftstücks. Der Empfänger ist über die Folgen einer Versäumung der Frist zu belehren.
§ 1099 Widerklage
(1) Eine Widerklage, die nicht den Vorschriften der Verordnung (EG) Nr. 861/2007 entspricht, ist außer im Fall des Artikels 5 Abs. 7 Satz 1 der Verordnung (EG) Nr. 861/2007 als unzulässig abzuweisen.
(2) Im Fall des Artikels 5 Abs. 7 Satz 1 der Verordnung (EG) Nr. 861/2007 wird das Verfahren über die Klage und die Widerklage ohne Anwendung der Vorschriften der Verordnung (EG) Nr. 861/2007 fortgeführt. Das Verfahren wird in der Lage übernommen, in der es sich zur Zeit der Erhebung der Widerklage befunden hat.
§ 1100 Mündliche Verhandlung
(1) Das Gericht kann den Parteien sowie ihren Bevollmächtigten und Beiständen gestatten, sich während einer Verhandlung an einem anderen Ort aufzuhalten und dort Verfahrenshandlungen vorzunehmen. § 128a Abs. 1 Satz 2 und Abs. 3 bleibt unberührt.
(2) Die Bestimmung eines frühen ersten Termins zur mündlichen Verhandlung (§ 275) ist ausgeschlossen.
§ 1101 Beweisaufnahme
(1) Das Gericht kann die Beweise in der ihm geeignet erscheinenden Art aufnehmen, soweit Artikel 9 Abs. 2 und 3 der Verordnung (EG) Nr. 861/2007 nichts anderes bestimmt.
(2) Das Gericht kann einem Zeugen, Sachverständigen oder einer Partei gestatten, sich während einer Vernehmung an einem anderen Ort aufzuhalten. § 128a Abs. 2 Satz 2, 3 und Abs. 3 bleibt unberührt.
§ 1102 Urteil
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Urteile bedürfen keiner Verkündung. Die Verkündung eines Urteils wird durch die Zustellung ersetzt.
§ 1103 Säumnis
Äußert sich eine Partei binnen der für sie geltenden Frist nicht oder erscheint sie nicht zur mündlichen Verhandlung, kann das Gericht eine Entscheidung nach Lage der Akten erlassen. § 251a ist nicht anzuwenden.
§ 1104 Abhilfe bei unverschuldeter Säumnis des Beklagten
(1) Liegen die Voraussetzungen des Artikels 18 Abs. 1 der Verordnung (EG) Nr. 861/2007 vor, wird das Verfahren fortgeführt; es wird in die Lage zurückversetzt, in der es sich vor Erlass des Urteils befand. Auf Antrag stellt das Gericht die Nichtigkeit des Urteils durch Beschluss fest.
(2) Der Beklagte hat die tatsächlichen Voraussetzungen des Artikels 18 Abs. 1 der Verordnung (EG) Nr. 861/2007 glaubhaft zu machen.
Titel 2 Zwangsvollstreckung § 1105 Zwangsvollstreckung inländischer Titel
(1) Urteile sind für vorläufig vollstreckbar ohne Sicherheitsleistung zu erklären. Die §§ 712 und 719 Abs. 1 Satz 1 in Verbindung mit § 707 sind nicht anzuwenden.
(2) Für Anträge auf Beschränkung der Zwangsvollstreckung nach Artikel 15 Abs. 2 in Verbindung mit Artikel 23 der Verordnung (EG) Nr. 861/2007 ist das Gericht der Hauptsache zuständig. Die Entscheidung ergeht im Wege einstweiliger Anordnung. Sie ist unanfechtbar. Die tatsächlichen Voraussetzungen des Artikels 23 der Verordnung (EG) Nr. 861/2007 sind glaubhaft zu machen.
§ 1106 Bestätigung inländischer Titel
(1) Für die Ausstellung der Bestätigung nach Artikel 20 Abs. 2 der Verordnung (EG) Nr. 861/2007 ist das Gericht zuständig, dem die Erteilung einer vollstreckbaren Ausfertigung des Titels obliegt.
(2) Vor Ausfertigung der Bestätigung ist der Schuldner anzuhören. Wird der Antrag auf Ausstellung einer Bestätigung zurückgewiesen, so sind die Vorschriften über die Anfechtung der Entscheidung über die Erteilung einer Vollstreckungsklausel entsprechend anzuwenden.
§ 1107 Ausländische Vollstreckungstitel
Aus einem Titel, der in einem Mitgliedstaat der Europäischen Union nach der Verordnung (EG) Nr. 861/2007 ergangen ist, findet die Zwangsvollstreckung im Inland statt, ohne dass es einer Vollstreckungsklausel bedarf.
§ 1108 Übersetzung
Hat der Gläubiger nach Artikel 21 Abs. 2 Buchstabe b der Verordnung (EG) Nr. 861/2007 eine Übersetzung vorzulegen, so ist diese in deutscher Sprache zu verfassen und von einer in einem der Mitgliedstaaten der Europäischen Union hierzu befugten Person zu erstellen.
§ 1109 Anträge nach den Artikeln 22 und 23 der Verordnung (EG) Nr. 861/2007; Vollstreckungsabwehrklage
(1) Auf Anträge nach Artikel 22 der Verordnung (EG) Nr. 861/2007 ist § 1084 Abs. 1 und 2 entsprechend anzuwenden. Auf Anträge nach Artikel 23 der Verordnung (EG) Nr. 861/2007 ist § 1084 Abs. 1 und 3 entsprechend anzuwenden.
(2) § 1086 gilt entsprechend.
Anlage (zu § 850c) *)
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bis 777,00 380,00 226,00 111,00 35,00 -
2.050,00 bis 784,00 385,00 230,00 114,00 37,00 -
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn monatlich
in EUR 2.059,99 2.060,00 2.069,99
bis 791,00 390,00 234,00 117,00 39,00 -
2.070,00 2.079,99
bis 798,00 395,00 238,00 120,00 41,00 1,00
2.080,00 2.089,99
bis 805,00 400,00 242,00 123,00 43,00 2,00
2.090,00 2.099,99
bis 812,00 405,00 246,00 126,00 45,00 3,00
2.100,00 2.109,99
bis 819,00 410,00 250,00 129,00 47,00 4,00
2.110,00 2.119,99
bis 826,00 415,00 254,00 132,00 49,00 5,00
2.120,00 2.129,99
bis 833,00 420,00 258,00 135,00 51,00 6,00
2.130,00 2.139,99
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2.140,00 2.149,99
bis 847,00 430,00 266,00 141,00 55,00 8,00
2.150,00 2.159,99
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2.160,00 2.169,99
bis 861,00 440,00 274,00 147,00 59,00 10,00
2.170,00 2.179,99
bis 868,00 445,00 278,00 150,00 61,00 11,00
2.180,00 2.189,99
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2.190,00 2.199,99
bis 882,00 455,00 286,00 156,00 65,00 13,00
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bis 889,00 460,00 290,00 159,00 67,00 14,00
2.210,00 2.219,99
bis 896,00 465,00 294,00 162,00 69,00 15,00
2.220,00 2.229,99
bis 903,00 470,00 298,00 165,00 71,00 16,00
2.230,00 2.239,99
bis 910,00 475,00 302,00 168,00 73,00 17,00
2.240,00 bis 917,00 480,00 306,00 171,00 75,00 18,00
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn monatlich
in EUR 2.249,99 2.250,00 2.259,99
bis 924,00 485,00 310,00 174,00 77,00 19,00
2.260,00 2.269,99
bis 931,00 490,00 314,00 177,00 79,00 20,00
2.270,00 2.279,99
bis 938,00 495,00 318,00 180,00 81,00 21,00
2.280,00 2.289,99
bis 945,00 500,00 322,00 183,00 83,00 22,00
2.290,00 2.299,99
bis 952,00 505,00 326,00 186,00 85,00 23,00
2.300,00 2.309,99
bis 959,00 510,00 330,00 189,00 87,00 24,00
2.310,00 2.319,99
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2.320,00 2.329,99
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2.330,00 2.339,99
bis 980,00 525,00 342,00 198,00 93,00 27,00
2.340,00 2.349,99
bis 987,00 530,00 346,00 201,00 95,00 28,00
2.350,00 2.359,99
bis 994,00 535,00 350,00 204,00 97,00 29,00
2.360,00 2.369,99
bis 1.001,00 540,00 354,00 207,00 99,00 30,00
2.370,00 2.379,99
bis 1.008,00 545,00 358,00 210,00 101,00 31,00
2.380,00 2.389,99
bis 1.015,00 550,00 362,00 213,00 103,00 32,00
2.390,00 2.399,99
bis 1.022,00 555,00 366,00 216,00 105,00 33,00
2.400,00 2.409,99
bis 1.029,00 560,00 370,00 219,00 107,00 34,00
2.410,00 2.419,99
bis 1.036,00 565,00 374,00 222,00 109,00 35,00
2.420,00 2.429,99
bis 1.043,00 570,00 378,00 225,00 111,00 36,00
2.430,00 bis 1.050,00 575,00 382,00 228,00 113,00 37,00
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn monatlich
in EUR 2.439,99 2.440,00 2.449,99
bis 1.057,00 580,00 386,00 231,00 115,00 38,00
2.450,00 2.459,99
bis 1.064,00 585,00 390,00 234,00 117,00 39,00
2.460,00 2.469,99
bis 1.071,00 590,00 394,00 237,00 119,00 40,00
2.470,00 2.479,99
bis 1.078,00 595,00 398,00 240,00 121,00 41,00
2.480,00 2.489,99
bis 1.085,00 600,00 402,00 243,00 123,00 42,00
2.490,00 2.499,99
bis 1.092,00 605,00 406,00 246,00 125,00 43,00
2.500,00 2.509,99
bis 1.099,00 610,00 410,00 249,00 127,00 44,00
2.510,00 2.519,99
bis 1.106,00 615,00 414,00 252,00 129,00 45,00
2.520,00 2.529,99
bis 1.113,00 620,00 418,00 255,00 131,00 46,00
2.530,00 2.539,99
bis 1.120,00 625,00 422,00 258,00 133,00 47,00
2.540,00 2.549,99
bis 1.127,00 630,00 426,00 261,00 135,00 48,00
2.550,00 2.559,99
bis 1.134,00 635,00 430,00 264,00 137,00 49,00
2.560,00 2.569,99
bis 1.141,00 640,00 434,00 267,00 139,00 50,00
2.570,00 2.579,99
bis 1.148,00 645,00 438,00 270,00 141,00 51,00
2.580,00 2.589,99
bis 1.155,00 650,00 442,00 273,00 143,00 52,00
2.590,00 2.599,99
bis 1.162,00 655,00 446,00 276,00 145,00 53,00
2.600,00 2.609,99
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2.610,00 2.619,99
bis 1.176,00 665,00 454,00 282,00 149,00 55,00
2.620,00 bis 1.183,00 670,00 458,00 285,00 151,00 56,00
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn monatlich
in EUR 2.629,99 2.630,00 2.639,99
bis 1.190,00 675,00 462,00 288,00 153,00 57,00
2.640,00 2.649,99
bis 1.197,00 680,00 466,00 291,00 155,00 58,00
2.650,00 2.659,99
bis 1.204,00 685,00 470,00 294,00 157,00 59,00
2.660,00 2.669,99
bis 1.211,00 690,00 474,00 297,00 159,00 60,00
2.670,00 2.679,99
bis 1.218,00 695,00 478,00 300,00 161,00 61,00
2.680,00 2.689,99
bis 1.225,00 700,00 482,00 303,00 163,00 62,00
2.690,00 2.699,99
bis 1.232,00 705,00 486,00 306,00 165,00 63,00
2.700,00 2.709,99
bis 1.239,00 710,00 490,00 309,00 167,00 64,00
2.710,00 2.719,99
bis 1.246,00 715,00 494,00 312,00 169,00 65,00
2.720,00 2.729,99
bis 1.253,00 720,00 498,00 315,00 171,00 66,00
2.730,00 2.739,99
bis 1.260,00 725,00 502,00 318,00 173,00 67,00
2.740,00 2.749,99
bis 1.267,00 730,00 506,00 321,00 175,00 68,00
2.750,00 2.759,99
bis 1.274,00 735,00 510,00 324,00 177,00 69,00
2.760,00 2.769,99
bis 1.281,00 740,00 514,00 327,00 179,00 70,00
2.770,00 2.779,99
bis 1.288,00 745,00 518,00 330,00 181,00 71,00
2.780,00 2.789,99
bis 1.295,00 750,00 522,00 333,00 183,00 72,00
2.790,00 2.799,99
bis 1.302,00 755,00 526,00 336,00 185,00 73,00
2.800,00 2.809,99
bis 1.309,00 760,00 530,00 339,00 187,00 74,00
2.810,00 bis 1.316,00 765,00 534,00 342,00 189,00 75,00
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn monatlich
in EUR 2.819,99 2.820,00 2.829,99
bis 1.323,00 770,00 538,00 345,00 191,00 76,00
2.830,00 2.839,99
bis 1.330,00 775,00 542,00 348,00 193,00 77,00
2.840,00 2.849,99
bis 1.337,00 780,00 546,00 351,00 195,00 78,00
2.850,00 2.851,00
bis 1.344,00 785,00 550,00 354,00 197,00 79,00
Der Mehrbetrag ab 2.851,00 EUR ist voll pfändbar. Pfändbarer Betrag bei Unterhaltspflicht für ... Personen
0 1 2 3 4 5 und mehrNetto-Lohn wöchentlich in EUR
bis 219,99 - - - - - - 220,00 bis 222,49 1,75 - - - - - 222,50 bis 224,99 3,50 - - - - - 225,00 bis 227,49 5,25 - - - - - 227,50 bis 229,99 7,00 - - - - - 230,00 bis 232,49 8,75 - - - - - 232,50 bis 234,99 10,50 - - - - - 235,00 bis 237,49 12,25 - - - - - 237,50 bis 239,99 14,00 - - - - - 240,00 bis 242,49 15,75 - - - - - 242,50 bis 244,99 17,50 - - - - - 245,00 bis 247,49 19,25 - - - - - 247,50 bis 249,99 21,00 - - - - - 250,00 bis 252,49 22,75 - - - - - 252,50 bis 254,99 24,50 - - - - - 255,00 bis 257,49 26,25 - - - - - 257,50 bis 259,99 28,00 - - - - - 260,00 bis 262,49 29,75 - - - - - 262,50 bis 264,99 31,50 - - - - - 265,00 bis 267,49 33,25 - - - - - 267,50 bis 269,99 35,00 - - - - - 270,00 bis 272,49 36,75 - - - - - 272,50 bis 274,99 38,50 - - - - - 275,00 bis 277,49 40,25 - - - - -
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn wöchentlich
in EUR 277,50 bis 279,99 42,00 - - - - - 280,00 bis 282,49 43,75 - - - - - 282,50 bis 284,99 45,50 - - - - - 285,00 bis 287,49 47,25 - - - - - 287,50 bis 289,99 49,00 - - - - - 290,00 bis 292,49 50,75 - - - - - 292,50 bis 294,99 52,50 - - - - - 295,00 bis 297,49 54,25 - - - - - 297,50 bis 299,99 56,00 - - - - - 300,00 bis 302,49 57,75 0,75 - - - - 302,50 bis 304,99 59,50 2,00 - - - - 305,00 bis 307,49 61,25 3,25 - - - - 307,50 bis 309,99 63,00 4,50 - - - - 310,00 bis 312,49 64,75 5,75 - - - - 312,50 bis 314,99 66,50 7,00 - - - - 315,00 bis 317,49 68,25 8,25 - - - - 317,50 bis 319,99 70,00 9,50 - - - - 320,00 bis 322,49 71,75 10,75 - - - - 322,50 bis 324,99 73,50 12,00 - - - - 325,00 bis 327,49 75,25 13,25 - - - - 327,50 bis 329,99 77,00 14,50 - - - - 330,00 bis 332,49 78,75 15,75 - - - - 332,50 bis 334,99 80,50 17,00 - - - - 335,00 bis 337,49 82,25 18,25 - - - - 337,50 bis 339,99 84,00 19,50 - - - - 340,00 bis 342,49 85,75 20,75 - - - - 342,50 bis 344,99 87,50 22,00 - - - - 345,00 bis 347,49 89,25 23,25 0,60 - - - 347,50 bis 349,99 91,00 24,50 1,60 - - - 350,00 bis 352,49 92,75 25,75 2,60 - - - 352,50 bis 354,99 94,50 27,00 3,60 - - - 355,00 bis 357,49 96,25 28,25 4,60 - - - 357,50 bis 359,99 98,00 29,50 5,60 - - - 360,00 bis 362,49 99,75 30,75 6,60 - - - 362,50 bis 364,99 101,50 32,00 7,60 - - - 365,00 bis 367,49 103,25 33,25 8,60 - - - 367,50 bis 369,99 105,00 34,50 9,60 - - -
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn wöchentlich
in EUR 370,00 bis 372,49 106,75 35,75 10,60 - - - 372,50 bis 374,99 108,50 37,00 11,60 - - - 375,00 bis 377,49 110,25 38,25 12,60 - - - 377,50 bis 379,99 112,00 39,50 13,60 - - - 380,00 bis 382,49 113,75 40,75 14,60 - - - 382,50 bis 384,99 115,50 42,00 15,60 - - - 385,00 bis 387,49 117,25 43,25 16,60 - - - 387,50 bis 389,99 119,00 44,50 17,60 - - - 390,00 bis 392,49 120,75 45,75 18,60 0,45 - - 392,50 bis 394,99 122,50 47,00 19,60 1,20 - - 395,00 bis 397,49 124,25 48,25 20,60 1,95 - - 397,50 bis 399,99 126,00 49,50 21,60 2,70 - - 400,00 bis 402,49 127,75 50,75 22,60 3,45 - - 402,50 bis 404,99 129,50 52,00 23,60 4,20 - - 405,00 bis 407,49 131,25 53,25 24,60 4,95 - - 407,50 bis 409,99 133,00 54,50 25,60 5,70 - - 410,00 bis 412,49 134,75 55,75 26,60 6,45 - - 412,50 bis 414,99 136,50 57,00 27,60 7,20 - - 415,00 bis 417,49 138,25 58,25 28,60 7,95 - - 417,50 bis 419,99 140,00 59,50 29,60 8,70 - - 420,00 bis 422,49 141,75 60,75 30,60 9,45 - - 422,50 bis 424,99 143,50 62,00 31,60 10,20 - - 425,00 bis 427,49 145,25 63,25 32,60 10,95 - - 427,50 bis 429,99 147,00 64,50 33,60 11,70 - - 430,00 bis 432,49 148,75 65,75 34,60 12,45 - - 432,50 bis 434,99 150,50 67,00 35,60 13,20 - - 435,00 bis 437,49 152,25 68,25 36,60 13,95 0,30 - 437,50 bis 439,99 154,00 69,50 37,60 14,70 0,80 - 440,00 bis 442,49 155,75 70,75 38,60 15,45 1,30 - 442,50 bis 444,99 157,50 72,00 39,60 16,20 1,80 - 445,00 bis 447,49 159,25 73,25 40,60 16,95 2,30 - 447,50 bis 449,99 161,00 74,50 41,60 17,70 2,80 - 450,00 bis 452,49 162,75 75,75 42,60 18,45 3,30 - 452,50 bis 454,99 164,50 77,00 43,60 19,20 3,80 - 455,00 bis 457,49 166,25 78,25 44,60 19,95 4,30 - 457,50 bis 459,99 168,00 79,50 45,60 20,70 4,80 - 460,00 bis 462,49 169,75 80,75 46,60 21,45 5,30 -
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn wöchentlich
in EUR 462,50 bis 464,99 171,50 82,00 47,60 22,20 5,80 - 465,00 bis 467,49 173,25 83,25 48,60 22,95 6,30 - 467,50 bis 469,99 175,00 84,50 49,60 23,70 6,80 - 470,00 bis 472,49 176,75 85,75 50,60 24,45 7,30 - 472,50 bis 474,99 178,50 87,00 51,60 25,20 7,80 - 475,00 bis 477,49 180,25 88,25 52,60 25,95 8,30 - 477,50 bis 479,99 182,00 89,50 53,60 26,70 8,80 - 480,00 bis 482,49 183,75 90,75 54,60 27,45 9,30 0,15 482,50 bis 484,99 185,50 92,00 55,60 28,20 9,80 0,40 485,00 bis 487,49 187,25 93,25 56,60 28,95 10,30 0,65 487,50 bis 489,99 189,00 94,50 57,60 29,70 10,80 0,90 490,00 bis 492,49 190,75 95,75 58,60 30,45 11,30 1,15 492,50 bis 494,99 192,50 97,00 59,60 31,20 11,80 1,40 495,00 bis 497,49 194,25 98,25 60,60 31,95 12,30 1,65 497,50 bis 499,99 196,00 99,50 61,60 32,70 12,80 1,90 500,00 bis 502,49 197,75 100,75 62,60 33,45 13,30 2,15 502,50 bis 504,99 199,50 102,00 63,60 34,20 13,80 2,40 505,00 bis 507,49 201,25 103,25 64,60 34,95 14,30 2,65 507,50 bis 509,99 203,00 104,50 65,60 35,70 14,80 2,90 510,00 bis 512,49 204,75 105,75 66,60 36,45 15,30 3,15 512,50 bis 514,99 206,50 107,00 67,60 37,20 15,80 3,40 515,00 bis 517,49 208,25 108,25 68,60 37,95 16,30 3,65 517,50 bis 519,99 210,00 109,50 69,60 38,70 16,80 3,90 520,00 bis 522,49 211,75 110,75 70,60 39,45 17,30 4,15 522,50 bis 524,99 213,50 112,00 71,60 40,20 17,80 4,40 525,00 bis 527,49 215,25 113,25 72,60 40,95 18,30 4,65 527,50 bis 529,99 217,00 114,50 73,60 41,70 18,80 4,90 530,00 bis 532,49 218,75 115,75 74,60 42,45 19,30 5,15 532,50 bis 534,99 220,50 117,00 75,60 43,20 19,80 5,40 535,00 bis 537,49 222,25 118,25 76,60 43,95 20,30 5,65 537,50 bis 539,99 224,00 119,50 77,60 44,70 20,80 5,90 540,00 bis 542,49 225,75 120,75 78,60 45,45 21,30 6,15 542,50 bis 544,99 227,50 122,00 79,60 46,20 21,80 6,40 545,00 bis 547,49 229,25 123,25 80,60 46,95 22,30 6,65 547,50 bis 549,99 231,00 124,50 81,60 47,70 22,80 6,90 550,00 bis 552,49 232,75 125,75 82,60 48,45 23,30 7,15 552,50 bis 554,99 234,50 127,00 83,60 49,20 23,80 7,40
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn wöchentlich
in EUR 555,00 bis 557,49 236,25 128,25 84,60 49,95 24,30 7,65 557,50 bis 559,99 238,00 129,50 85,60 50,70 24,80 7,90 560,00 bis 562,49 239,75 130,75 86,60 51,45 25,30 8,15 562,50 bis 564,99 241,50 132,00 87,60 52,20 25,80 8,40 565,00 bis 567,49 243,25 133,25 88,60 52,95 26,30 8,65 567,50 bis 569,99 245,00 134,50 89,60 53,70 26,80 8,90 570,00 bis 572,49 246,75 135,75 90,60 54,45 27,30 9,15 572,50 bis 574,99 248,50 137,00 91,60 55,20 27,80 9,40 575,00 bis 577,49 250,25 138,25 92,60 55,95 28,30 9,65 577,50 bis 579,99 252,00 139,50 93,60 56,70 28,80 9,90 580,00 bis 582,49 253,75 140,75 94,60 57,45 29,30 10,15 582,50 bis 584,99 255,50 142,00 95,60 58,20 29,80 10,40 585,00 bis 587,49 257,25 143,25 96,60 58,95 30,30 10,65 587,50 bis 589,99 259,00 144,50 97,60 59,70 30,80 10,90 590,00 bis 592,49 260,75 145,75 98,60 60,45 31,30 11,15 592,50 bis 594,99 262,50 147,00 99,60 61,20 31,80 11,40 595,00 bis 597,49 264,25 148,25 100,60 61,95 32,30 11,65 597,50 bis 599,99 266,00 149,50 101,60 62,70 32,80 11,90 600,00 bis 602,49 267,75 150,75 102,60 63,45 33,30 12,15 602,50 bis 604,99 269,50 152,00 103,60 64,20 33,80 12,40 605,00 bis 607,49 271,25 153,25 104,60 64,95 34,30 12,65 607,50 bis 609,99 273,00 154,50 105,60 65,70 34,80 12,90 610,00 bis 612,49 274,75 155,75 106,60 66,45 35,30 13,15 612,50 bis 614,99 276,50 157,00 107,60 67,20 35,80 13,40 615,00 bis 617,49 278,25 158,25 108,60 67,95 36,30 13,65 617,50 bis 619,99 280,00 159,50 109,60 68,70 36,80 13,90 620,00 bis 622,49 281,75 160,75 110,60 69,45 37,30 14,15 622,50 bis 624,99 283,50 162,00 111,60 70,20 37,80 14,40 625,00 bis 627,49 285,25 163,25 112,60 70,95 38,30 14,65 627,50 bis 629,99 287,00 164,50 113,60 71,70 38,80 14,90 630,00 bis 632,49 288,75 165,75 114,60 72,45 39,30 15,15 632,50 bis 634,99 290,50 167,00 115,60 73,20 39,80 15,40 635,00 bis 637,49 292,25 168,25 116,60 73,95 40,30 15,65 637,50 bis 639,99 294,00 169,50 117,60 74,70 40,80 15,90 640,00 bis 642,49 295,75 170,75 118,60 75,45 41,30 16,15 642,50 bis 644,99 297,50 172,00 119,60 76,20 41,80 16,40 645,00 bis 647,49 299,25 173,25 120,60 76,95 42,30 16,65
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Pfändbarer Betrag bei Unterhaltspflicht für ... Personen 0 1 2 3 4 5 und mehrNetto-Lohn wöchentlich
in EUR 647,50 bis 649,99 301,00 174,50 121,60 77,70 42,80 16,90 650,00 bis 652,49 302,75 175,75 122,60 78,45 43,30 17,15 652,50 bis 654,99 304,50 177,00 123,60 79,20 43,80 17,40 655,00 bis 657,49 306,25 178,25 124,60 79,95 44,30 17,65 657,50 bis 658,00 308,00 179,50 125,60 80,70 44,80 17,90
Der Mehrbetrag ab 658,00 EUR ist voll pfändbar. Pfändbarer Betrag bei Unterhaltspflicht für ... Personen
0 1 2 3 4 5 und mehrNetto-Lohn täglich in EUR
bis 43,99 - - - - - - 44,00 bis 44,49 0,35 - - - - - 44,50 bis 44,99 0,70 - - - - - 45,00 bis 45,49 1,05 - - - - - 45,50 bis 45,99 1,40 - - - - - 46,00 bis 46,49 1,75 - - - - - 46,50 bis 46,99 2,10 - - - - - 47,00 bis 47,49 2,45 - - - - - 47,50 bis 47,99 2,80 - - - - - 48,00 bis 48,49 3,15 - - - - - 48,50 bis 48,99 3,50 - - - - - 49,00 bis 49,49 3,85 - - - - - 49,50 bis 49,99 4,20 - - - - - 50,00 bis 50,49 4,55 - - - - - 50,50 bis 50,99 4,90 - - - - - 51,00 bis 51,49 5,25 - - - - - 51,50 bis 51,99 5,60 - - - - - 52,00 bis 52,49 5,95 - - - - - 52,50 bis 52,99 6,30 - - - - - 53,00 bis 53,49 6,65 - - - - - 53,50 bis 53,99 7,00 - - - - - 54,00 bis 54,49 7,35 - - - - - 54,50 bis 54,99 7,70 - - - - - 55,00 bis 55,49 8,05 - - - - - 55,50 bis 55,99 8,40 - - - - - 56,00 bis 56,49 8,75 - - - - - 56,50 bis 56,99 9,10 - - - - - 57,00 bis 57,49 9,45 - - - - -
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*) Diese Anlage ist durch Bekanntmachung zu § 850c der Zivilprozessordnung (Pfändungsfreigrenzenbekanntmachung 2005) vom 25. Februar 2005 (BGBl. I S. 493) geändert worden.
Fußnote
(+++ Hinweis: Die Fassung der Anlage ergibt sich für den Zeitraum vom 1.7.2005 bis 30.6.2007 aus Bek. v. 25.2.2005 I 493 (Pfändungsfreigrenzenbekanntmachung 2005), für den Zeitraum vom 1.7.2007 bis 30.6.2009 aus Bek. v. 22.1.2007 I 64 (Pfändungsfreigrenzenbekanntmachung 2007), für den Zeitraum vom 1.7.2009 bis 30.6.2011 aus Bek. v. 15.5.2009 I 1141 (Pfändungsfreigrenzenbekanntmachung 2009), für die Zeit ab 1.7.2011 aus Bek. v. 9.5.2011 I 825 (Pfändungsfreigrenzenbekanntmachung 2011), für die Zeit ab 1.7.2013 aus Bek. v. 26.3.2013 I 710 (Pfändungsfreigrenzenbekanntmachung 2013) +++)
Anhang EV Auszug aus EinigVtr Anlage I Kapitel III Sachgebiet A Abschnitte III und IV (BGBl. II 1990, 889, 927, 940) Abschnitt III - Maßgaben für das beigetretene Gebiet (Art. 3 EinigVtr) - Abschnitt IV - Sonderregelung für das Land Berlin -
Abschnitt III Bundesrecht tritt ... vorbehaltlich der Sonderregelung für das Land Berlin in Abschnitt IV in dem in Artikel 3 des Vertrages genannten Gebiet mit folgenden Maßgaben in Kraft: ... 5. Zivilprozeßordnung in der im Bundesgesetzblatt Teil III, Gliederungsnummer 310-4, veröffentlichten
bereinigten Fassung, zuletzt geändert durch Artikel 4 des Gesetzes vom 17. Mai 1990 (BGBl. I S. 926), mit folgenden Maßgaben: a) bis i) (nicht mehr anzuwenden) j) Entscheidungen der gesellschaftlichen Gerichte können nicht für vollstreckbar erklärt werden. k) bis l) (nicht mehr anzuwenden)
... 28. Im übrigen gelten, falls in den Nummern 1 bis 27 nichts anderes bestimmt ist, die folgenden
allgemeinen Maßgaben: (nicht mehr anzuwenden)
Abschnitt IV ... 3. Für folgende in Abschnitt III genannte Rechtsvorschriften gelten im Land Berlin folgende Besonderheiten:
... c) Zivilprozeßordnung in der im Bundesgesetzblatt Teil III, Gliederungsnummer 310-4 veröffentlichten
bereinigten Fassung, zuletzt geändert durch Artikel 4 des Gesetzes vom 17. Mai 1990 (BGBl. I S. 926),
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mit folgenden Maßgaben:
(nicht mehr anzuwenden)
...