Book Session – Definition and Legal Significance
Die Book Session is a term from German civil procedure law and refers to the main hearing in which a decision is made solely on the basis of the case file and the written submissions of the parties. The book session represents a form of proceedings without oral hearing of the parties or witnesses and is especially used in civil procedures where a personal hearing is not required by law or both parties consent to it. The purpose of the book session is to reach a judicial decision based on the written submissions of the parties and the case file.
Legal Basis of the Book Session
Code of Civil Procedure (ZPO)
The conduct of a book session is regulated in the German Code of Civil Procedure. Relevant provisions are particularly found in §§ 128, 331, 495a, and 348 ZPO. These concern both ordinary litigation as well as certain special types of proceedings.
§ 128 ZPO – Orality of Proceedings
In principle, civil proceedings are characterized by the principle of orality (§ 128 para. 1 ZPO). However, according to § 128 para. 2 ZPO, it is possible, with the parties’ consent, to issue a decision in written proceedings. In such cases, a book session is held.
§ 331 ZPO – Default Judgment Without Oral Hearing
According to § 331 ZPO, in the event of default, the court can issue a default judgment without an oral hearing if the plaintiff so applies and the defendant does not appear at the oral hearing, but also if both parties negotiate in writing.
§ 495a ZPO – Proceedings at the Court’s Discretion
For cases with low dispute value, the court may, in accordance with § 495a ZPO, conduct the proceedings at its own discretion in writing.
§ 348 ZPO – Single-Judge Proceedings
Even in simplified proceedings before a single judge, evidence can be taken or a decision rendered through a book session.
Course and Execution of the Book Session
Requirements
A book session generally requires that either the parties expressly waive an oral hearing or that the law permits such a procedure. In particular, in written preliminary proceedings (§ 128 para. 2 ZPO), the process is typically conducted as a book session.
Procedure and Decision-Making
Within a book session, the court examines only the case file. The written submissions of the parties, any documentary evidence, and the entire file are considered. Based on these documents, a decision is then rendered:
- As a rule, the judgment is delivered to the parties in writing.
- No evidence is taken by hearing witnesses or parties.
- After the completion of the written proceedings, the court sets a deadline for the submission of further briefs and then makes a decision.
Parties’ Participation Rights
Although there is no oral hearing, the parties retain the right to present their arguments in writing. They may submit statements, explanations, or additional submissions upon request by the court or within set deadlines.
Areas of Application for the Book Session
Civil Procedure
In civil proceedings, the book session is particularly important when:
- The parties expressly request a decision in written proceedings;
- The law permits a decision based on the file (e.g., in payment or dunning proceedings);
- The legal dispute does not involve a complex factual situation that would require an oral hearing or evidence taking.
Other Judicial Proceedings
Book sessions are also used in other types of proceedings, for example:
- In labor court judgment proceedings;
- In certain administrative proceedings, when a decision is to be made solely in writing;
- In order for payment proceedings with no objection lodged and the basis of claim is clear.
Advantages and Disadvantages of the Book Session
Advantages
- Expedited Proceedings: Decisions can be made quickly since no hearings have to be scheduled.
- Cost Efficiency: Reduced effort for the court and parties, as no oral hearing is conducted.
- Effectiveness Where Facts are Clear: Suitable for uncontested or straightforward situations.
Disadvantages
- Limited Fact-Finding: Complex or contentious facts sometimes cannot be fully clarified, as direct examination of witnesses or experts is omitted.
- Reduced Dynamism in Proceedings: Since parties do not communicate directly, recognizable misunderstandings or ambiguities cannot be resolved as quickly as in an oral hearing.
Legal Remedies and Protection
The court’s decision in a book session is generally subject to the same remedies as a decision following an oral hearing. An appeal or, in higher instances, a revision may be filed against a judgment rendered in written proceedings, provided the statutory requirements are met. The provisions on informing about remedies and on procedural deadlines also apply without restriction.
Distinction From Oral Hearing
The essential distinguishing criterion from oral hearings lies in the absence of direct hearing of the parties and witnesses by the court. While oral hearings allow especially for the possibility of taking evidence, the book session focuses on evaluating submitted briefs, documents, and files.
Practical Significance
The book session is of particular practical relevance in proceedings conducted entirely in writing or for minor disputes. It enables an efficient, time-saving, and cost-effective resolution of legal matters, especially in proceedings where there are no material disputes over facts. With the increasing digitization of judicial procedures and the expansion of electronic communication, the book session is gaining further importance.
Literature and Further References
- Code of Civil Procedure (ZPO)
- Musielak/Voit, ZPO, Commentary
- Thomas/Putzo, Code of Civil Procedure
- Zöller, Code of Civil Procedure
Book sessions are thus a flexible instrument within German procedural law, enabling the appropriate and efficient resolution of suitable legal disputes while complying with legal requirements.
Frequently Asked Questions
Who is legally required to keep accounting records?
In Germany, the Commercial Code (HGB) stipulates who is obliged to keep books of account. In principle, merchants as defined by §§ 238 et seq. HGB must maintain books and in these record their commercial transactions as well as the state of their assets in accordance with the principles of proper accounting (GoB). Sole traders who, at the balance sheet dates of two consecutive fiscal years, do not exceed €600,000 in sales or €60,000 in annual profit, are exempt from this obligation under § 241a HGB. Corporations such as GmbHs and stock corporations are always subject to the obligation of bookkeeping. In addition, tax law, according to §§ 140, 141 of the Fiscal Code (AO), prescribes a tax-related bookkeeping obligation for traders if certain revenue or profit thresholds are exceeded. Professionals such as doctors, Rechtsanwalt, or architects are generally exempt from the obligation to keep commercial books but usually must prepare a surplus income statement.
What statutory requirements exist for the retention of accounting documents?
According to § 257 HGB and § 147 AO, commercial books, inventories, balance sheets, accounting vouchers, and other tax-relevant documents must be retained for at least ten years. For received business letters, copies of outgoing business letters, and other documents with commercial relevance, the retention period is six years. The period regularly begins at the end of the calendar year in which the documents were created. Failure to comply with retention obligations can lead to both civil and tax disadvantages, such as estimates or fines.
In what form may bookings be legally documented?
Bookkeeping may be done either in writing or electronically according to § 239 para. 4 HGB. In the case of electronic bookkeeping, the provisions of the GoBD (Principles for the Proper Keeping and Storage of Books, Records, and Documents in Electronic Form as well as for Data Access) issued by the Federal Ministry of Finance (BMF) must also be observed. It is important that entries are traceable, complete, correct, timely, and organized, and that they can be made legible at any time. Subsequent alteration of data is only permissible if the original information remains recognizable (requirement for documentation and immutability).
What are the legal consequences of faulty or omitted bookkeeping?
Faulty or omitted bookkeeping can have significant legal consequences. Under tax regulations, the tax office may estimate the tax bases (§ 162 AO) if the bookkeeping is not proper. Criminal penalties for tax evasion (§ 370 AO), delay in filing for insolvency (§ 15a InsO), or balance sheet fraud (§ 331 HGB, § 283 StGB) may also be imposed. Civilly, creditors may assert claims against management, especially in cases of demonstrable harm due to incorrect bookkeeping. Fines under § 379 AO are also possible.
What minimum requirements apply to small entrepreneurs for bookkeeping?
Small entrepreneurs and non-merchants who are not required to keep double-entry bookkeeping for commercial or tax purposes typically only need to prepare a simple surplus income statement (EÜR) pursuant to § 4 para. 3 EStG. Only actual business income and expenses must be evidenced. Nevertheless, exempt entrepreneurs must also observe certain retention periods, the obligation to keep complete records, and the principles of traceability and verifiability.
How is the immutability of entries ensured and what does the law require?
According to § 239 para. 3 HGB as well as GoBD, the law requires that all bookings may not be altered afterwards without being noticed. This applies to both manual and electronic bookkeeping systems. In practice, this means that every change must be documented (requirement for amendment or logging), and the original bookings must remain legible. Electronic systems generally use journals or audit trails for this purpose, recording every change with a timestamp, user information, and reason for change. It must also be ensured that no deletions in the true sense take place, but rather cancellations or correction entries are made.
What rights of access to accounting data does the state have?
According to § 147 para. 6 AO, companies are obliged during tax audits to grant the tax authorities direct access to digital accounting data. Alternatively, the authority may require that this data be provided on a machine-readable medium. If this duty of cooperation is violated, coercive fines, delay penalties, or estimated tax assessments may be imposed. Social security institutions and other supervisory authorities may also have rights to audit and access company accounting records under certain circumstances.
