It has long been the practice in Germany to summarise the rules of German Law of Civil Procedure by a number of 'Principles'. These 'Principles' are well known to every German lawyer and are included in most elementary text books. An admirable statement in English of these procedural principles (Prozessmaximen) as they stood before 1933 will be found in Engelmann-Millar's History of Continental Civil Procedure (Legal History Series, vol. 7, 1928, p. 3 onwards). The ' principles ' are not to be understood to apply without exception. Some of them are more the expression of a goal to be aspired than that of an achievement attained. Some of them are expressing what is to-day a triviality, but was in former times hotly
disputed. In their totality they give a fair picture of the basis on which the structure of German procedure rests.
The principle of Bilateral Hearing (Grundsatz des beiderseitigen Gehirs) means that decisions must not Ibe made except after both parties have been heard. There are very few exceptions to this principle, all of them are universally recognised, such as judgments in default of appearance provided that the defendant who has been properly summoned does not appear; or orders for an Arrest or granting another type of injunction on an ex parte application.
The principle of party presentation (Verhandlungsmaxime) expresses the idea that the court is restricted to a consideration of those facts which the parties have placed before it. The opposing principle is called principle of judicial investigation (Untersuchungsmaxime or Inquisitionsprinzip). Where the latter principle applies the judge must ex officio investigate the circumstances of the case by, e.g., calling witnesses even if not nominated by the parties. The principle of party presentation forms the rule but important exceptions from the principle of party presentation are in force in German Law:(a) It does not as a rule apply in matters where not property but status is at issue, such as in divorce cases or where the legitimacy of a child is concerned.
(b) Section 138, ZPO, as amended by the 1933 law, makes it the duty of every party to civil proceedings to state the truth. Failure to do so may render the guilty party liable in damages and may result in disciplinary proceedings against the attorney who has negligently or deliberately offended against the principle. If a party has by stating an untruth delayed the proceedings he may be held liable to pay a...
SECTION IV - The Principles Of German Civil Procedure
|Author:||E. J. Cohn and G. Meyer|
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