SECTION XX - Appeals From Decisions

Author:E. J. Cohn and G. Meyer
Profession:Sir
Pages:63
 
FREE EXCERPT
  1. The ZPO styles as Rechtsmittel every step, the effect of which is to bring the decision of one court before a superior court with a view to its being reversed and replaced by another decision. The following kinds of Rechtsmittel are distinguished:(a) Appeals from judgments. They are either Berufung (appeal on facts and law) or Revision (appeal on law). As a rule, a judgment can be brought, by way of Berufung, before the next higher court (section 511, ZPO) where both the law and the facts of the case are subjected to a re-examination. See sections 525, 529, 531 and 537, ZPO. Against the judgment of the appeal court there lies as a rule a Revision.

    (b) Appeals from other decisions (Beschliisse) are called Beschwerden (complaints).

    In a number of cases other steps are open to a party to obtain a review of his case, either by the same court or by another, though not a higher court as, e.g., the Einspruch in case of judgments in default of appearance (section 338, ZPO), or the application for a new trial (sections 578ff., ZPO). These are not technically called Rechtsmittel. The term Rechtsbehelf covers both the Rechtsmittel and these other ways of obtaining a review of a decision.

  2. The Berufung requires an application in writing by an attorney, admitted at the court having jurisdiction to hear the appeal. The appeal has to be lodged within one month from the date when the judgment of the court below has been served. The value of the dispute to be decided by the appeal court must be more than DM 100 in the British Zone. (With regard to other Zones see Baumbach's notes on section 511a, ZPO). Appeals from judgments of the Landgericht lie to the Oberlandesgericht which sits with three judges; appeals from judgments of the Amtsgericht lie to the Landgericht. A complete new trial is held by the court of second instance, provided the latter does not, by an informal decision (Beschluss) reject the Berufung on the ground that the subject matter of the dispute is less than DM 100, or that the period for lodging the appeal had expired, or on any similar formal ground. Originally the parties could even plead new facts, but this right has been increasingly restricted in order to force the parties to concentrate

    all their efforts upon a thorough treatment of their case in the court of first instance, until in 1942 the rule was revised and new facts were excluded from being pleaded in the court of second instance altogether, if the parties could have been...

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