Definition and Explanation of Terms: Proceedings by Public Notice
Proceedings by public notice are objects or legal relationships that are dealt with in a court procedure of public notice. German law provides for the public notice procedure as a special judicial process, in which unknown or unascertainable parties are publicly called upon to register their rights in order to establish legal certainty. Typical areas of application include the public notice for documents, unknown heirs, and ship creditors. Proceedings by public notice are closely linked to various areas of law, in particular civil law and property law.
Legal Basis of Proceedings by Public Notice
The procedure and requirements for proceedings by public notice are governed primarily by the German Civil Code (BGB), the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG), as well as specific individual statutes. Of particular importance is the:
- Sections 946 to 1024 BGB (Provisions concerning, among other things, securities, mortgages, land charges, annuity charges)
- Sections 433 ff. FamFG (Provisions regarding the public notice procedure)
- Act on the Public Notice Procedure (AufgebV)
Types and Areas of Application of Proceedings by Public Notice
Public Notice for Documents
The most common case is the public notice and cancellation of lost or destroyed documents, especially mortgage deeds, land charge certificates, securities, and promissory notes. Anyone who has lost such a document may apply for its cancellation through a public notice procedure in order to obtain legal clarity and request substitute documents.
Public Notice in Inheritance Law
In inheritance law, the public notice procedure serves to determine the heirs, to call upon unknown heirs to register their rights, and to ascertain any estate creditors. This allows the heir to limit their liability for estate debts.
Public Notice in Property and Maritime Law
In the case of lost real property liens (mortgage or land charge certificates) and ship mortgages, the public notice procedure can lead to cancellation and entries in the land register or ship register.
Other Proceedings by Public Notice
These include, for example, the public notice regarding rights of ownership in movable property, notice for security rights, or judicial determination of disappeared liabilities.
Procedure in Court Proceedings by Public Notice
Filing the Application
The process begins when a party submits an application to the competent local court. The application must provide an exact description of the object or legal relationship as well as a presentation of the facts that make a public notice procedure necessary.
Public Announcement
Once the application is received, a judicial public notice is issued, which is published—usually by posting at the court and publishing on the justice portal or in the Federal Gazette. It states a deadline within which rights must be registered.
Registration Deadline and Objection
Within the specified period, rights may be registered or objections may be raised. If a creditor fails to register their right, it may result in the exclusion of their rights in certain cases.
Issuance of an Exclusion or Cancellation Order
If the deadline passes without effective objections or registrations, the court issues an order (e.g., declaring a document invalid or excluding creditors). This order has binding effect on all parties involved.
Legal Effects and Consequences of the Public Notice Procedure
The main purpose of the public notice procedure is to provide legal certainty when the actual owners or rights holders are unknown or cannot be found. The most important legal effects are:
- Declaration of Invalidity: Lost or destroyed documents retroactively lose their legal effect.
- Exclusion Effect: Rights not registered within the public notice period can no longer be asserted.
- Legal Clarity: The applicant may obtain a substitute document or an entry in the land register.
Jurisdiction and Procedural Law
The competent court is generally the local court in whose district the object is located or in whose district the matter is legally situated. The procedure is non-contentious in nature and falls under matters of voluntary jurisdiction. The legal remedy against orders is usually the complaint (Beschwerde).
Remedies Against Decisions in the Public Notice Procedure
If a public notice application is rejected or if an exclusion or invalidity order is issued, the complaint pursuant to Sections 58 ff. FamFG is regularly available. Anyone whose rights may be affected by the decision is entitled to lodge a complaint.
Special Features and Distinctions
Difference from Other Proceedings
The public notice procedure differs from adversarial proceedings in that it does not resolve conflicts between parties but rather serves an interest in legal clarification. It belongs to the field of voluntary jurisdiction.
International Aspects
Comparable regulations exist in Germany’s neighboring states, though with partly different procedural rules. In cross-border cases, special jurisdictional and procedural rules may need to be observed.
Literature and Case Law
Key case law on proceedings by public notice can be found in the decisions of the Federal Court of Justice and the Higher Regional Courts. Commentaries, particularly comprehensive commentaries on the BGB and FamFG, are especially informative.
Summary
Proceedings by public notice involve objects and legal relationships that are legally clarified by the court through an official public announcement procedure. They play an important role in ensuring legal certainty, especially in cases of lost documents, unclear issues of inheritance law, and in connection with proprietary rights. The procedure is strictly regulated by law and ensures that clear legal relationships can be established even in cases with unknown or absent parties.
Frequently Asked Questions
Who is responsible for conducting a public notice procedure?
According to German law, the local court in whose district the creditor’s or the object’s last known place of residence is located is generally responsible for conducting the public notice procedure. If documents or securities are involved, jurisdiction is usually determined by the last known habitual residence of the issuer or the seat of the issuing body. The court first checks if the formal requirements for conducting the procedure—especially the application and substantiation of the loss or other grounds for public notice—are met. The court is also responsible for arranging the necessary notices and monitoring the relevant deadlines.
What deadlines must be observed in the public notice procedure?
Within the framework of a public notice procedure, particular attention must be paid to the deadlines set between the public announcement of the notice and the expiration of the registration period: The court sets this period at its equitable discretion, but according to Section 945 ZPO, it must be at least six weeks and no more than six months. During this period, all parties involved or right holders have the opportunity to register their claims with the court. After the deadline, if no registrations or no justified registrations have been made, the court may, if applicable, issue the exclusion judgment.
How is the public notice announced?
The public notice is generally announced through public publication in the Federal Gazette, and if necessary, in additional official publications or newspapers circulated in the district of the competent court. The court may order further measures to ensure all potential parties are reached. The notice contains the essential details of the subject matter, the deadline for registration, and information about the legal consequences of the procedure. The publication is intended to give all affected parties the opportunity to assert their rights or raise objections.
What documents must be attached to the application for public notice?
The application for the public notice procedure must be accompanied by comprehensive documentation. It is mandatory to submit a statement, either drafted by a lawyer or in the applicant’s own handwriting, setting out the reasons for the procedure and, in particular, the loss or disappearance of the object. In addition, evidence such as loss reports, sworn affidavits regarding the facts, proof of last possession, and, if available, copies or transcripts of the document or security in question must be included. If essential documents are missing, the court will request their submission before commencing the proceedings.
What legal remedies are available against the exclusion judgment?
An immediate complaint (sofortige Beschwerde) is admissible against the court’s exclusion judgment, which at the end of the public notice procedure rules on the exclusion of unregistered rights, pursuant to Sections 945 ff. ZPO. The complaint period is two weeks from notification of the decision. Within this time, any party claiming that the judgment infringes their rights may file a complaint. The court of appeal will then review whether the public notice procedure was properly conducted and the decision was legally correct.
What are the legal consequences of an effective exclusion judgment?
With the finality of the exclusion judgment, rights not registered are conclusively excluded. This means that third parties who did not assert their claims in the procedure lose their rights to the subject matter. The findings of the exclusion judgment are binding on everyone, including future purchasers or entitled parties. The applicant may apply for the issuance of a substitute document or for the right to dispose of the subject matter based on the exclusion judgment.
What is the effect of an incorrect public notice procedure on the parties involved?
An incorrectly conducted public notice procedure, for example due to failure to provide proper notice or disregard of significant procedural rules, may lead to the exclusion judgment being challenged or even invalid. Deadlines that are set too short or not properly published, or incorrect information in the public notice, can significantly affect the validity of the judgment. Parties whose rights were violated by such errors may subsequently assert their claims by means of an immediate complaint or—in cases of severe defects—through a motion for retrial.
