Restitution Action
The restitution action is a significant legal remedy in German civil procedure law and serves to reopen a proceeding that has already become final and binding. Its aim is to annul or modify a judicial decision if, subsequently, facts or evidence come to light that call the finality of the judgment into question. The restitution action is subject to strict statutory requirements and deadlines in order not to disproportionately affect legal certainty.
Definition and Importance of the Restitution Action
The restitution action is regulated in Section 580 et seq. of the Code of Civil Procedure (ZPO). It is one of the so-called extraordinary legal remedies and allows the correction of final judgments in cases of serious procedural errors or new essential findings. This type of action is intended to prevent incorrect judgments from being maintained when they are based on misleading factual grounds or procedural manipulations.
Legal Foundations
Provisions in the Code of Civil Procedure
The right to bring a restitution action arises from the following provisions:
- Section 578 ZPO: Scope of application (including civil, labor, social, administrative, and fiscal court proceedings)
- Section 579 ZPO: Admissibility of the action
- Section 580 ZPO: Grounds for restitution
- Section 581 ZPO: Deadlines and prerequisites for bringing the action
- Section 582 ZPO: Required content of the statement of claim
- Section 583 ZPO: Procedure and conclusion
Substantive and Formal Legal Protection
The restitution action protects the trust in final judgments against incorrect decisions. It is applied when an exception to the finality of judgments appears to be justified.
Prerequisites for the Restitution Action
In order for a restitution action to be successful, certain narrowly defined prerequisites must be met:
Admissibility Requirements
- Existence of a final judgment: The underlying decision must be final and binding.
- Grounds for restitution within the meaning of Section 580 ZPO: Only the grounds listed therein entitle a party to file suit.
- No other legal remedy available: The action can only be brought if no other legal remedy is available.
- Compliance with statutory deadlines and formal requirements: The statement of claim must be filed with the competent court within certain deadlines and in the prescribed form.
Grounds for Restitution (§ 580 ZPO)
The material grounds for restitution include, among others:
- False statements by witnesses, parties, experts, or document officers, which have been confirmed by a criminal court judgment.
- The use of a forged document in the proceedings, the falsity of which only became known subsequently.
- A criminal offence in the case at hand, such as bribery or fraud upon the court.
- Findings that the court should not have overlooked in the proper exercise of its duties (§ 580 No. 7 ZPO).
- Release of a party from an oath that was decisive in the previous proceedings.
However, reopening based merely on legal errors or where injustice has arisen is excluded.
Deadlines and Filing the Action
Commencement and Duration of the Deadline
The deadline for bringing a restitution action is generally three months (§ 586 ZPO), calculated from the time the entitled party became aware of the ground for restitution.
Required Content of the Statement of Claim
The statement of claim must contain the following information:
- Identification of the challenged decision
- Specification and detailed presentation of the ground for restitution
- Precise reasoning and requests for evidence
- Information on the date and scope of becoming aware of the ground
Procedure and Course
Jurisdiction
The court that originally ruled on the matter in the first instance has both subject-matter and local jurisdiction for deciding the restitution action.
Course of Proceedings
The procedure begins with the filing of the action and presentation of the restitution grounds. The defendant is given the opportunity to respond. The court first examines the admissibility of the action. If this is affirmed, it proceeds to a substantive review and, if necessary, repeats certain examinations and takes evidence. The court then decides either to set aside, amend, or affirm the challenged judgment.
Effect of a Successful Action
If the action is upheld, the previous judgment is set aside and replaced with a new one. Only to the extent of the restitution action is the finality of the original judgment set aside.
Legal Consequences and Practical Importance
The restitution action serves to protect against serious miscarriages of justice but, due to its strict requirements, is only rarely successful. It strikes a balance between the principle of legal certainty and substantive justice. In practice, the restitution action is especially significant in cases of procedural fraud or the subsequent discovery of crucial evidence.
Distinction from Other Legal Remedies
The restitution action must be distinguished from the reopening of criminal proceedings and from remedies such as appeal or revision. It only becomes available after finality has occurred and solely on the basis of statutorily regulated grounds for reopening. While remedies aim to correct legal errors during pending proceedings, the restitution action addresses errors discovered only after finality.
International Provisions on the Restitution Action
Other countries also have similarly designed instruments for breaking the finality of binding decisions. In the European context, such provisions can be found, for example, in the Austrian Code of Civil Procedure (§ 530 ff. ZPO) and in Switzerland (reopening pursuant to Art. 328 ZPO).
References and Further Statutes
- §§ 578-591 Code of Civil Procedure (ZPO)
- Götz, Thies: “Die Restitutionsklage im Zivilprozess”, NJW 2020, 324 ff.
- Musielak/Voit, ZPO, 20th edition, §§ 578-591
Summary: The restitution action is an extraordinary legal remedy to correct final and binding decisions in civil proceedings. It is subject to strict statutory requirements and short deadlines, generally applying only in cases of serious procedural errors or newly discovered facts in order to prevent substantive miscarriages of justice. The restitution action occupies a crucial position in the field of tension between legal certainty and substantive justice.
Frequently Asked Questions
When is a restitution action admissible under Section 580 ZPO?
The restitution action is admissible if, after finality of a final judgment or order, new facts or evidence become known which could not have been asserted earlier in the prior proceedings and whose timely knowledge would have led to serious doubts about the correctness of the judgment. In addition, it is admissible if any of the special conditions exhaustively specified in Section 580 ZPO are met, such as if the judgment is based on an act that is criminally classified as fraud or forgery, or if the judgment was obtained by evidence given through a criminal act. Furthermore, the restitution action can be brought when there is a civil law ground for reopening, such as the discovery of a forged or falsified document, or the obtaining of a spurious witness statement. It is thus an extraordinary legal remedy that breaks finality if one of the narrowly defined grounds for restitution exists.
What deadlines must be observed when bringing a restitution action?
The deadlines for bringing a restitution action are set out in Section 586 ZPO. The action must be brought within one month of learning of the ground for restitution. The one-month period begins at the point in time when the claimant becomes aware of the ground for reopening and the final conclusion of the prior proceedings, or should have become aware without gross negligence. There is also an absolute cut-off period: after five years from the entry into legal force of the judgment being challenged, a restitution action can generally no longer be brought, regardless of when the ground was discovered. Only in the case of criminal law grounds for restitution are longer exclusion periods applicable.
Who has standing to bring or defend against a restitution action?
Anyone who was a party to the original legal dispute or their legal successor has standing to file (active standing). It makes no difference whether the party was plaintiff or defendant. Also, anyone directly affected by the judgment in their rights—for example, a third party in cases of extension of res judicata—can have active standing. Passive standing is granted to the party in whose favor the challenged judgment was rendered, or whose rights would be prejudiced by a successful reopening and new decision. Both natural and legal persons may, depending on their role in the proceedings, have active or passive standing.
In which judicial procedure is the restitution action conducted?
The restitution action is conducted as an independent procedure before the trial court of first instance of the challenged judgment, regardless of whether the original proceedings were decided before the first or a higher instance. This means that even if the original proceedings were concluded before an appellate court or the Federal Court of Justice, the originating court (the so-called trial court of first instance) is competent for the restitution proceedings. The restitution proceedings are divided into two stages: First, it is examined whether the ground for restitution is valid and the submissions are substantiated (admissibility and merits of the restitution action); only then, if applicable, is the case reheard and retried.
What cost risks are associated with a restitution action?
The cost risk essentially corresponds to the usual risk of legal costs in civil proceedings. The plaintiff bears the court costs as well as their own and, if the claim is successful, possibly also the opposing counsel’s costs. If the claim is dismissed or withdrawn, the plaintiff must bear all litigation and legal costs. In addition, reopening the entire previous proceedings regularly leads to additional costs, for example for evidentiary proceedings, expert opinions, and witnesses. The cost risk is therefore considerable, especially because the requirements for the prospect of success are very high.
What is the relationship between the restitution action and res judicata (finality)?
The restitution action is one of the few exceptions to the principle of finality (res judicata). Generally, after a judgment has become final, any further dispute over the same facts between the same parties is to be excluded. The restitution action breaches this finality only in narrowly defined exceptional cases, which are exhaustively regulated in Section 580 ZPO. It is therefore not a true remedy, but an extraordinary legal remedy which, under strict conditions, subjects a final and binding judgment to review and, where appropriate, permits a reopening of the proceedings.
What is the significance of new evidence or facts for the restitution action?
New evidence or facts are only relevant for the restitution action if they are such that they could not have been presented in the original proceedings without gross fault and if, had they been known in time, they would demonstrably have led to a more favorable judgment for the plaintiff. It is not sufficient that mere doubts are cast on the correctness of the judgment; rather, it must be shown that a different decision would have been highly likely. New evidence may be, in particular, new documents, discovered witnesses, or expert opinions, whose relevance must be specifically demonstrated. The newly submitted fact or new evidence must therefore be suitable to undermine the basis of the former judgment.
