Litigation is the resolution of a judicial dispute before the state courts. The vast majority of commercial disputes between private parties in Germany are decided by ordinary civil courts.
The German judicial system consists of four hierarchical levels, in the form that goes from lower to higher level: the courts of first instance (“Amtsgerichte”), the regional courts (“Landgerichte”), the higher regional courts (” Oberlandesgerichte “) and the Federal Court of Justice (” Bundesgerichtshof “). In Hamburg there are eight courts of first instance, a regional court and a superior regional court.
In the courts of first instance, civil cases are processed before a single judge. In the regional courts, simple cases are processed by a judge and the most complex cases by three judges. There is also a commercial room (“Kammer für Handelssachen”) in the regional courts, which is made up of a professional judge and two lay experts in the commercial sector. In the higher regional courts, the cases are usually known by three judges.
At the entry level, courts of first instance and regional courts may have jurisdictional jurisdiction. The courts of first instance can handle disputes that do not exceed 5,000 dollars and the regional courts those that exceed 5,000 dollars. Exceptions to this rule are made for example, in cases of disputes in matters of family law or rent of apartments.
The parties may have reached this agreement either beforehand (by inserting a forum choice clause into a contract), or after the dispute arises. If the parties have not reached an agreement, the territorial jurisdiction courts will be based on the laws in force. Under these rules, it is generally considered that the court of the domicile of the defendant is competent. However, there are several exceptions to this rule. For example, for contract claims, the court of the place where the breach of the contract was executed, whether the execution took place, civil offense or damage, is competent.
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- The judgments of the courts of justice are enforceable.
- The judgments of the courts of justice are recognized and can be enforced in Germany as well as in all other EU member states under the Brussels I Regulation. Germany has also established bilateral agreements with various countries, providing mutual recognition and making possible to enforce judgments.
- Legal proceedings can be relatively cheap.
- The cost of judicial proceedings will depend on the amount in dispute, which can also be defined by a table of court costs. Even the costs are not greater in the regional court even when three judges are required to make a decision. The procedural costs will be lower in case there is no oral hearing or in case the parties reach an agreement.
- The judicial procedures can be relatively fast.
- The judicial procedures offer efficient protection.
- The judicial procedures offer efficient protection through the rapid granting of precautionary measures and protection through summary proceedings (for example, preventive measures against competitors in intellectual property disputes or family conflicts).
- Legal proceedings may take longer due to the existence of the appeal and review procedures
- Judgments can be potentially subject to appeal and review procedures. Consequently, even if a first instance sentence is handed down in a short time, the case can be seen twice as many times over. These appeal and review procedures are able to increase the duration of the procedures and multiply the taint costs
The importance of litigating
Having clarified the point of what litigation is, it is essential to mention the importance of this process and it should be noted that not every conflict is considered litigation. That is, any conflict that requires the protection of a judicial body is considered litigation, but a totally personal problem between two people may not be considered as such.
The concept of litigation serves to delimit the issue or problem that we have and what is the process that will be carried out to achieve a resolution, because the litigation is precisely the “object of the process”. The means to solve a litigation are divided into three major groups:
This is called that because the solution is found thanks to the agreement of the parties in conflict.
The Auto composition
This type of solution is also thanks to the mutual agreement of the parties to the conflict, which is why it is qualified as partial.
The Hetero composition
This refers to the solution by a third party, can be a judge or somebody with power to establish the resolution, which is why it is described as impartial.
This is an important and difficult question because there is a very long debate about whether the courts should intervene in those public policy issues or whether this corresponds only to the Executive or the legislator in terms of enabling norms.
In social life people are normally related on the basis of the agreement of wills, the agreement or the contract of spontaneous fulfillment of their obligations. However, conflicts of interest eventually arise between the subjects of rights: a person claims to be the owner of a property and intends to be delivered, and the one that owns said property is reluctant to deliver it, arguing that she also has property title over the same good; It is when the litigation arises.
The litigation is “the conflict of interests qualified by the pretension of one of the interested parties and the resistance of the other.” Conflict of interest only becomes litigation when a person formulates a claim against another, that is, demands the subordination of the interest other than self-interest; and in the face of that pretension, the other party expresses its resistance, that is, opposes it, refusing to subordinate its self-interest to the interest asserted through the pretension. If before the pretence of the first, the second did not oppose resistance, the litigation would not arise.
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