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Remedies and Remedies - Appeal

II. Appeal

With the appeal, the case decided by the court of first instance is reopened again. The court of appeal is both a factual and a legal instance. With the ZPO reform 2002 Numerous changes were introduced to relieve the courts of appeal and to strengthen the first instance.

Video: appeal in civil process


a) Admissibility

b) Form, deadline

The appeal is filed by submitting an appeal to the court of appeal (= iudex ad quem) (Section 519 (1) ZPO). That is the first step for the appellant. The appeal must name the judgment against which the appeal is to be lodged and contain the declaration that an appeal will be lodged (Section 519 (2) ZPO). In addition, it must be clear for and against whom an appeal is to be made.

BGH NJW 2002, 831, 832; NJW 2011, 2056. The appeal letter must be signed by a lawyer (Section 78 (1) ZPO = ability to postulate). BGH NJW 2011, 1294, 1295 (electronic signature § 130a ZPO by lawyer). The Deadline for the appeal is one month from the delivery of the judgment to the respective party, but no longer than five months after the announcement (§ 517 ZPO).

c) Appeal for value in dispute and for admission

According to the legislature, not every judgment is suitable for review by the second instance. The appeal is only admissible if the value the subject of the complaint 600 € exceeds (§ 511 Paragraph 2 No. 1 ZPO). Appeal sums below are "peanuts" and do not justify the involvement of the state apparatus. The court of first instance can and must also appeal in its judgment for values ​​below € 600 allow (Section 511 Paragraph 2 No. 2 ZPO). This obligation exists under the prerequisites of Section 511 (4) ZPO (fundamental significance, ensuring uniform jurisdiction, further training of the law; see marginal no. 422). If the court is silent on the question of admission, non-admission is to be assumed.

BGH NJW 2011, 926, 927; see also BGH NJW 2013, 2124.
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Mona more or less failed with her claim for reimbursement of the exchange costs before the AG Cologne. She was only awarded a reduction amount of € 273. The judgment will be announced on 9 May 2017. It will be delivered to Mona on May 23, 2017. Mona now has until June 23, 2017 to appeal against the judgment by a lawyer capable of postulating (§ 517 ZPO with §§ 187, 188 BGB). Mona is also formally complained, if you compare her application with the verdict. The value of the subject of the complaint is reached without any problems if Mona asks the appellate authority for the remaining € 2127 (€ 2400 minus the awarded € 273 = € 2127). Admission is not important.

d) Form and deadline for justifying the appeal

The next hurdle is the justification of the appointment. This is the second step for the appellant. The plaintiff has two months from the delivery of the judgment under appeal (Section 520 (2) ZPO) to formulate a brief containing a specific application for appeal (Section 520 (3) sentence 2 no. 1 ZPO). It must state the extent to which the judgment is contested and which amendment is sought. A specific application within the meaning of Section 253 (2) No. 2 ZPO is not necessary as long as the aim and scope are recognizable.

BGH NJW-RR 2017, 1341; NJW 2017, 3777, 3778. In addition, the appellant must raise “doubts about the correctness of the first judgment”. Either he has to complain about relevant legal errors in his reasoning (§ 520 Abs. 3 S. 2 Nr. 2 ZPO) or assert the lack of correctness of the factual determination (§ 520 Abs. 3 S. 2 Nr. 3 ZPO) or new means of attack or defense name (Section 520 Paragraph 3 Sentence 2 No. 4 ZPO). Since this requires a thorough study of the first-instance judgment, the time limit for giving reasons is often extended in practice at the request of the plaintiff (see section 520 (2) sentence 3 ZPO). The lawyer can expect that an extension applied for for the first time will be approved.BGH NJW 2010, 1610, 1611.

e) Cross-appeal

The plaintiff or defendant can independently lodge an appeal if they are complained about (e.g. if the complaint is partially upheld). But you don't have to. The cross-appeal (Section 524 (1) ZPO) allows the parties to calmly await the opponent's behavior. For example, if the plaintiff files an appeal on the last day of the appeal period, the defendant can respond with the cross appeal. Because the court must now set a deadline for the appellant to respond to the appellant's appeal. The defendant can then file a cross appeal within this period (Section 524 (2) sentence 2 ZPO). This is not a legal remedy and therefore does not require a complaint.

See. Musielak / Voit / Ball ZPO § 524 marginal number 10; critical Zöller / Hessler ZPO § 524 marginal number 31. The disadvantage of the cross appeal is that it is dependent on the main legal remedy. If this is withdrawn, it automatically loses its effect (Section 524 (4) ZPO).

2. Justification of the appeal

If the appeal is admissible, the court must examine whether it is also well founded. As part of the merits of the appeal, the admissibility and merits of the action brought at first instance will be examined. However, the court is bound by the scope of the appeal applications (Section 528 ZPO). An important innovation contains § 529 ZPO. According to this, the court is generally bound by the factual findings of the first instance. With the provision of § 529 ZPO, the first instance should be strengthened as a factual instance and the appeal instance should be implemented as an "error control instance". The barrier of § 529 ZPO can, however, be broken. The court of appeal can reassess the facts ascertained in the first instance if there are concrete indications that the facts were not correctly or completely ascertained by the first court (Section 529 (1) No. 1 ZPO). This can be the case, for example, if the evidence is incorrectly assessed (Section 286 of the German Code of Civil Procedure). The BGH advocates a generous approach. Even in the event of "slight doubts", the appellate court has to make a new factual assessment of its own accord. A specific complaint by the plaintiff is not required; legal knowledge is sufficient.

BGH NJW 2005, 1583, 1584; further BVerfG 2005, 657, 658 f. The appellant can introduce new controversial facts or requests for evidence within the limits of Section 531 (2) ZPO. New undisputed Facts can always be introduced.BGH NJW 2005, 291, 292; NJW 2010, 2270, 2272. The court of appeal is never bound by the legal assessments of the first court. Certain admissibility requirements are excluded from the review (jurisdiction over legal recourse, local and factual jurisdiction, but not international jurisdiction).BGH NJW 2003, 426 f .; Adolphsen Civil procedural law § 30 marginal number 35.

a) Appeal inadmissible

If the appeal is inadmissible (e.g. missed the appeal deadline, complaint below € 600 and no admission), the appeal will be rejected by resolution without an oral hearing. A legal complaint against this is admissible (§§ 522 Paragraph 1 Sentence 4, 574 Paragraph 1 No. 1 ZPO).

b) Unfounded appeal

The 2002 reform severely restricted the right to appeal. In a large number of cases, the oral hearing no longer took place. The appeal was made unanimously decision simply "thrown out" and there was no legal remedy! This was heavily criticized in the legal profession and was therefore corrected in 2011. According to the revised provision of Section 522 (2) sentence 1 ZPO, the appellate court should only reject an appeal as unfounded by resolution if it is unanimously convinced that a) the appeal obviously has no prospect of success, b) the Matter has no fundamental significance, c) the further development of the law or the safeguarding of uniform case law does not require a decision by the appellate court and d) an oral hearing is not required. Before issuing the rejection decision, the court must give the appellant the opportunity to comment on it (Section 522 (2) sentence 2 ZPO). Until 2011, the appeal court's unanimous rejection decision was made incontestable.

Constitutional conformity affirmed BVerfG NJW 2003, 281; NJW 2005, 1931, 1932. The decision can now be challenged with the non-admission complaint (Section 522 (3) ZPO - “like a decision by judgment”).Zöller / Hessler ZPO § 522 marginal number 44.
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Mona will do everything to convince the court of appeal of the fundamental importance of her case in order to avoid a rejection according to § 522 Abs. 2 ZPO. Mona will prepare the dispute of opinion as extensively as possible to reimburse the supplementary performance costs and thus emphasize the fundamental importance of her case. According to jurisprudence, a matter is of fundamental importance if, among other things, different opinions are represented on a legal problem that have not yet been clarified by the highest court.

Compare only BGH NJW 2003, 65, 67 f.

In the other cases, the appeal is made after an oral hearing judgment decided. If the appeal is unfounded, it will be rejected.

c) Justified appeal

If the appeal is justified, the first-instance judgment will be revoked to the extent that it is incorrect (= cashiery effect). The appellate court does not refer back to the lower instance, but generally decides itself (Section 538 (1) ZPO). In exceptional cases, such as serious procedural deficiencies, remittal is permitted (Section 538 (2) ZPO).

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In response to Mona's appeal, the Court of Appeal (LG Cologne) amends the first-instance judgment so that V-GmbH is sentenced to deliver the 30 type XY tiles and to reimburse the replacement costs in the amount of € 1,400. Moreover, the application is dismissed. Mona is quite satisfied with this judgment, as the LG has largely confirmed her legal opinion. Even Thomas is now proud of his girlfriend's legal talent. Only the V-GmbH is not very happy about the judgment. The managing director is therefore considering whether to appeal against the judgment of the Cologne Regional Court.