The default judgment court order (Versäumnisurteil) arises when a party does not appear at a court hearing without proper reason or excuse. This mechanism is designed to ensure that justice can occur and prevent parties from simply not cooperating with the legal process. Receiving such an order should not come as a surprise, and there are ways of approaching such an order. It does not need to be the final say in a case.
However, should the order come unexpectedly, then something has gone wrong. Information may have been withheld or not received, which requires further investigation.
At Schlun & Elseven Rechtsanwälte, our lawyers are experienced litigators who provide expert advice across legal fields in Germany. Please, do not hesitate to contact us today for furthguidanceice and legal counsel.
How does the German Default Judgment (Versäumnisurteil) occur?
The German Default Judgment (Versäumnisurteil) arises in cases where one of the parties does not attend court proceedings. However, it also extends to where a party (or their legal professional) is late and can apply where the delay is by 15 minutes or more.
The default judgment is provided under §§ 330 – 331 ZPO (Code of Civil Procedure). This ruling can occur even where actions outside their control delay the party or their lawyer; however, under § 338 ZPO, the party can protest the verdict. Such a protest is particularly of use where the delays or inability to attend was due to outside events.
Applying for the default judgment is an expected course of events in the current legal environment. It may not seem persuasive to press a case, but not applying for such a judgment can be considered malpractice on the part of a lawyer in such a case.
A party in proceedings should expect their lawyer to contact the court should they find themselves in a position where they will be late or unable to attend proceedings.
A default judgment can also arise when the party appears but does not submit an oral argument favouring their case (§ 333 ZPO). Furthermore, a party is in danger of receiving a default judgment if they do not file their legal statement in time.
Having an experienced legal team of experienced litigators at your disposal will significantly reduce any such action from occurring.
Requesting the Default Judgment (Versäumnisurteil)
The opposite side should apply the default judgment under § 331 ZPO.
Should a plaintiff wish to enforce a default judgment, they have to demonstrate that there is substance to their claim.
Of course, if a plaintiff brings a case to court, they must demonstrate that they have a case for what they claim. This requirement should not be too difficult for the plaintiff to reach.
However, should the plaintiff not make themselves available, this requirement does not exist for the defendant. The lack of a plaintiff at proceedings allows for the default judgment to be issued.
Answering the Default Jugment (Versäumnisurteil)
If you have received the default judgment, you must take this matter seriously. It is critical to make sure you contact a German lawyer to ensure that this matter can be resolved correctly.
Time is of the essence in all cases with the default judgment. Typically, a person has two weeks to respond to the decision to send an appeal and continue the case. However, this needs to be submitted by a registered German lawyer for higher courts.
Having a lawyer in your home country intervene will not carry the same value in this matter as that of a German lawyer.
Those receiving such a default judgment outside of the two-week deadline can be extended (depending on the circumstances), however delay in responding should not be considered an option.
An experienced litigator will not only answer the default judgment and keep the case alive, they will also outline the realities of German legal proceedings and will provide insight as to the likelihood of a case succeeding.
Having an experienced German litigator oversee the case will also allow for strategies to be devised and implemented, increasing the chance of success in court. In higher courts it is not possible to answer proceedings without a legal representative and generally, there is no advantage to be gained for trying without representation.
Enforcement of the Default Judgment
Answering the default judgment is vital if you wish to keep the case alive; however, it is essential to be aware that the other side can enforce the judgment provisionally. This enforcement is an interim measure and can be overruled in time.
However, while it is in place, the side enforcing the judgment has the power to seize property or the other party’s bank account. Of course, should the response against the default judgment lead to an eventual victory in court, all the assets seized must then be returned at that point.
Should a second default judgment be given against a person, there is no manner by which they can protest that decision. This is legislated for under § 345 ZPO.
There should not be any risks taken by the party or their legal representatives regarding the possibility of a default judgment.
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