SECTION XV - The Oral Hearing

Author:E. J. Cohn and G. Meyer
Profession:Sir
Pages:54
 
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  1. The Judge (or if several Judges are sitting, the Chairman of the Court) opens the proceedings. He grants to the parties and their attorneys the right to speak, and he may withdraw it. He is responsible for seeing that the case makes as much headway as possible, that the parties give complete information on all points and that they make all the applications and motions which the progress of the matter requires. The Judge must discuss the entire case with the parties and draw their attention to any legal or factual point at issue which in his opinion is important (see sections 136 and 139, ZPO). The Judge or Court has studied the file before the oral hearing and is therefore fully aware of the facts of the case and the legal argument on which the parties wish to rely. The result is that the hearing is often merely formal in character and in any case requires very much less time than a hearing in a contested case before an English Court. On the other hand adjournments are not infrequent in German Courts. There may consequently be a number-sometimes considerable-of brief oral hearings succeeding each other.

  2. During the hearing the Judge has the duty of maintaining order in Court.

    This is usually called Polizeigewalt of the Judge. See section 176, GVG.

    The German Judge does not, however, possess the wide powers of punishment for contempt of Court which in English law are given to a Judge of a superior Court of Record. A German Judge has the following powers only: (a) Persons present at the trial, including witnesses and experts, who disobey any order made by the Judge in the exercise of his Polizeigewalt may be removed from the Court room and detained, but for not more than 24 hours. (Section 177, GVG.) The removal and detention require a formal decision by the Court. The person removed must have been given an opportunity of stating his or her case. There is no appeal from the order. The Judge cannot make an order for removal and detention against a Rechtsanwalt who represents one of the parties, or against the official in charge of the records of the Court. In the case of any disobedience on their part, he has no other remedy than to stop the proceedings or-in the case of a Rechtsamwalt-to apply for disciplinary measures to be taken against them.

    (b) Persons present at the hearing, except again Rechtsanwiilte, acting for one of the parties, and the official in charge of the records of the Court, may be punished by the Court for misconduct...

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