WHERE IS MY JURY?
Everything you know about litigation as a U.S. lawyer is wrong for a German lawsuit. Brace yourself for a court room culture shock.
German trial lawyer Bernhard Schmeilzl heads the litigation team of Graf & Partners LLP, a German law firm for Anglo-American clients.
Threatening someone to press criminal charges in Germany: Smart strategy or criminal offense?
Does German law permit claimants (or their lawyers) to threaten a debtor with pressing criminal charges against the debtor in case he or she refuses to pay a civil claim? Will a German lawyer have to face disciplinary sanctions when putting undue pressure on the opponent or their legal counsel?
All of this depends entirely on the circumstances of the case and the nature of the threat which is being used. This post explains if and to what extent the parties to a civil dispute in Germany are permitted to threaten each other with initiating criminal prosecution (Strafverfolgung) if the other side does not acknowledge the civil claim in dispute.
Legitimate use of pressure or criminal behaviour?
If you have a civil claim against someone, let’s say a contractual payment claim against a trustee, and you are convinced that your claim can also be based on tort, e.g. embezzlement or fraud, then it is perfectly legitimate under German law to threaten the debtor with a statement like:
“Unless you make full payment until the end of the week, I will not only sue you in civil court but will also press criminal charges against you for embezzlement.”
Under German law, in the above circumstances, a threat to press criminal charges constitutes neither coercion (Nötigung, see section 240 German Criminal Code) nor extortion / blackmailing (Erpressung, section 253 German Criminal Code) because there is a direct link between the actual claim and the criminal charges. The German criminal courts call this requirement of a direct connection “innerer Zusammenhang”.
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At which Court to file a civil or commercial lawsuit in Germany
In case you need to litigate in Germany, one of the first tasks is to know your way around German Civil Courts (ordentliche Gerichte). The below chart shows you at one glance which is the correct civil court for your claim against a German defendant, how many judges will hear your case and what your options for appeal are should you lose the lawsuit.
Finding the right German court or tribunal for your specific legal matter is tricky, because Germany has installed various specialised courts for certain areas of law, inter alia:
- Arbeitsgerichte (Labour Courts), dealing with all employment related disputes in Germany (more on the official website of the German Federal Labor Court);
- Verwaltungsgerichte (Administrative Courts), having jurisdiction over matters of public and administrative law like construction permits, planning permissions, municipal law etc. (more on the official website of the German Federal Administrative Court); and
- Finanzgerichte (Fiscal Courts), the courts deciding on German tax issues, in particular on objections by citizens against German tax bills issued by the Finanzamt (German tax office); more on the official website of the Federal Fiscal Court of Germany.
Chances are, however, that your case will not be heard by any of the specialized German courts listed above, because you will most likely want to make a civil or commercial claim against a German defendant. Or you may be involved in German probate matters (be it a contentious probate case or merely an application for a German grant) or a German family law case (divorce, child custody, alimony or child support etc).
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Statutes and regulations you should be aware of in case you plan to file a lawsuit in Germany
German civil law is based on the tradition of Roman law and is characterized by its codified system of legal provisions, i.e. statutes (Gesetze). This means that pretty much everything is written down in black letter law, including the rules concerning German Civil Litigation.
This is true for both the substantive laws (e.g. German Civil Code, German Commercial Code etc.) as well as the forensic procedural rules (Code of Civil Procedure, Labor Court Procedure Rules, Procedure Rules for Family Matters and Non-contentious Jurisdiction etc). More information on German law and the German legal system in general can be found in the official brochure “Law – Made in Germany”, published by the German government in cooperation with the German bar association (Bundesrechtsanwaltskammer). It is essentially a marketing brochure by German jurists, praising the advantages of the codified German legal system in comparison to the “not so easy to understand” common law system with its thousands of (sometimes medieval) precedents.
German Law Online
On the official German government website Gesetze im Internet, provided by the Justice Department (Justizministerium), you are able to access all German laws (Gesetze) and regulations (Verordnungen) relevant in the context of civil and commercial law claims and how to litigate in Germany. In addition to federal legislations available on Gesetze im Internet, you can research the various laws and regulations of the 16 individual German states (Bundesländer) on this website here: Justiz.de/bundeslandesrecht
The most essential German federal laws and procedural codes are even available in English language, see this list. While I am not always entirely happy with the quality of the translation and the English terminology used for certain German technical legal terms, these German statutes in English language will at least give you a basic understanding of the respective German law.
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Short guide to contentious probate procedure under German law
German succession laws as well as probate procedure are very different from those of Common Law jurisdictions. This is mainly due to the fact that German inheritance law does not know a personal representative. Instead, all rights and obligations of the decedent are automatically transferred onto the heir (successor) or the community of heirs, if more than one. My separate blog Cross Channel Lawyers explains the details of German inheritance law, German non-contentious probate, contentious probate (i.e. the rules on how to challenge a will), as well as German gift tax law in dozens of posts (see here).
Non-contentious German Probate (Erbscheinverfahren)
If no one does challenge a will, the standard approach to obtaining German probate is the non-contentious probate procedure, the so called Erbscheinsverfahren (section 2353 German Civil Code). This non-contentious probate (more) takes place at the German Amtsgericht (Circuit Court) in the city or district where the decedent had his or her last place of residence. The rules of procedure for this standard, i.e. non-contentious probate, are those of the FamFG, which is short for “Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit”, i.e. the German Act on Proceedings in Family Matters and in Matters of non-contentious Jurisdiction. More on the various German procedure rules in the post: German Statutes relating to Civil Litigation
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U.S. Plaintiffs must post security for the other party’s legal costs when suing in Germany
The German Code of Civil Procedure (Zivilprozessordnung) rules in section 110, that any claimant (plaintiff) from outside the European Union (EU) or the European Economic Area (EEA) who initiates a civil lawsuit in Germany, must not only pay in the court fees (details here), but must also provide security (Sicherheitsleistung) for the legal fees of the defendant. Depending on the value of the lawsuit, these costs can be steep. The idea behind this is, of course, that a foreign claimant shall not be able to file a lawsuit against someone in Germany and then, later, after having lost the case, dodge the defendant’s legal cost refund claim.
Who must post security for costs in German civil litigation cases?
According to section 110 para. (1) ZPO, plaintiffs who do not have their habitual residence (or business seat in case of the plaintiff is a company or corporation) within an EU or EEA member state, must provide a security deposit — if the German defendant in the lawsuit so demands. Sometimes the German defendant’s lawyer is not even aware of this statute, especially if the defendant’s lawyer does not carry out much international work. But if the defendant is represented by a German counsel worth his or her salt, that request for the plaintiff to provide security will be the first thing the defendant’s lawyer will submit to the court.
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