Definition and Concept of the Contentious Judgment
Ein contentious judgment is a court judgment rendered on the basis of a dispute between at least two parties after an oral hearing before a court. In contrast to the so-called judgment by acknowledgment, default judgment, or procedures concluded by settlement, the contentious judgment is issued after the court has conducted a full legal and factual examination. The contentious judgment is a core element of German civil procedural law but also appears in other procedural codes, such as administrative proceedings, social court procedure, or fiscal court proceedings.
Legal Basis of the Contentious Judgment
Code of Civil Procedure (ZPO)
In German civil proceedings, Section 300 of the Code of Civil Procedure (ZPO) is the principal provision for the contentious judgment. According to Section 300 (1) ZPO, the court renders its judgment after the last hearing or after the conclusion of written proceedings, on the basis of the entire oral hearing and the results of any evidence taken. A complete establishment of facts and legal assessment of the subject matter is mandatory.
Other Procedural Codes
In addition to the ZPO, other procedural codes also provide for contentious judgments, including:
- Code of Administrative Court Procedure (VwGO)
- Social Court Act (SGG)
- Fiscal Court Code (FGO)
- Labor Court Act (ArbGG)
In all the aforementioned procedural codes, cases are generally decided by a judgment, unless the case has already been concluded by other procedural means, such as a settlement or a default decision.
Distinction from Other Types of Judgments
Judgment by Acknowledgment
A judgment by acknowledgment (§ 307 ZPO) is rendered when the defendant acknowledges the asserted claim. In such a case, there is no need for a comprehensive examination of the facts by the court.
Default Judgment
A default judgment (§§ 330 et seq. ZPO) is rendered when a party is in default at the hearing, particularly when the defendant fails to appear despite being properly summoned.
Partial Judgment, Interim Judgment, Final Judgment
A contentious judgment may also take the form of a partial judgment (§ 301 ZPO), interim judgment (§ 303 ZPO), or final judgment. The typical characteristic remains that the judgment is rendered following a complete contentious procedure.
Requirements for a Contentious Judgment
Lis Pendens (Action Pending)
The proceedings must be pending, i.e., a permissible claim must have been filed and served on the defendant. Only in pending proceedings is a decision by contentious judgment possible.
Conduct of the Oral Hearing
The court must conduct an oral hearing. The judgment is rendered on the basis of the oral submissions of the parties and any evidence that has been taken.
Contentious Proceedings
There is a dispute over the claim or individual elements of the case. The court must examine and assess the subject matter of the dispute comprehensively.
Content and Scope of the Contentious Judgment
Operative Part (Tenor)
Der Operative Part (Tenor) contains the actual decision regarding the subject of the dispute, such as the order to pay, the dismissal of the claim, or findings.
Statement of Facts
Im Statement of Facts the parties, their motions, and the essential facts of the case are summarized. According to Section 313 (2) ZPO, the judgment must contain a statement of the facts and the subject of the dispute.
Reasoning for the Decision
Die Reasoning for the Decision contain the legal assessment of the facts and the reasons for which the court decided as it did. They serve in particular for review by the parties and the court of appeal.
Res Judicata and Effect of the Contentious Judgment
The contentious judgment becomes legally effective upon service on the parties if no appeal is lodged or the judgment becomes final. It has binding effect (res judicata) under Section 322 ZPO and can be enforced if it has been declared provisionally enforceable (§ 704 ZPO).
Binding Effect
The contentious judgment has a binding effect between the parties regarding the claim decided in the judgment (so-called res judicata effect). A repeat action over the identical subject matter between the same parties is precluded.
Significance of the Contentious Judgment in Practice
The contentious judgment guarantees a rule-of-law, independent decision on disputed claims. It forms the basis for remedies such as appeal (§§ 511 et seq. ZPO) or revision (§§ 542 et seq. ZPO). The proceedings leading to a contentious judgment follow strict formal and substantive rules to ensure equality of arms and the parties’ right to be heard. In practice, however, many parties aim for a settlement for procedural efficiency in order to avoid the cost risk and uncertainty of a judicial decision.
Differences in Criminal Proceedings and Other Types of Procedures
While in criminal proceedings it is generally the court that decides on guilt and punishment based on the main hearing, thus also rendering a contentious judgment, other terms such as ‘criminal judgment’ take precedence there. Contentious judgments are also rendered in administrative, labor, or social court proceedings according to the relevant procedural code.
Summary
Das contentious judgment represents the standard form of court decision when a dispute exists between parties after an oral hearing and a complete factual examination. It is considered a core element of German procedural law and ensures a transparent, comprehensible, and reviewable resolution of disputes. Once issued, the judgment has a special legal binding effect and in many cases marks the end of court proceedings. Its structure, requirements, and effects are set out in detail in the relevant procedural laws.
Frequently Asked Questions
What are the prerequisites for issuing a contentious judgment?
The prerequisite for issuing a contentious judgment is primarily the presence of a contentious statement of case — i.e., a declaration by the parties that is disputed on one or more points relevant to the decision. Unlike a default judgment or judgment by acknowledgment, the contentious judgment requires that the relevant facts are actually and legally disputed between the parties, so that the court decides after formal taking of evidence and consideration of both parties’ arguments. It is also necessary that the factual and legal situation is clarified to such an extent that a final decision can be made. This includes proper hearing in accordance with Section 128 ZPO, in particular that the parties have been adequately heard regarding the subject matter.
What is the typical procedure up to the issuance of a contentious judgment?
The procedure up to the issuance of a contentious judgment begins with the filing of the claim and service of the claim on the defendant. This is followed by the written preparatory process, in which the statement of defense, reply, and, if necessary, rejoinder are exchanged. During an early first hearing (§ 275 ZPO) or a main hearing (§ 128 ZPO), the parties have the opportunity to present their positions and apply for evidence to be taken. The court discusses the factual and legal situation with the parties and determines any necessary taking of evidence, such as hearing witnesses or expert opinions. After the evidence has been taken, the parties are heard for their final comments. The court then closes the oral hearing and decides on the basis of the established facts and legal assessment by rendering a contentious judgment (§ 300 ZPO).
To what extent is a contentious judgment binding?
A contentious judgment is binding as a rule only between the parties to the proceedings (inter partes effect). It is legally binding with respect to the claims asserted in the proceedings as well as the facts and legal questions related thereto. The binding effect (§ 322 ZPO) classifies the subject matter of the dispute as finally determined, so that neither party may bring the same subject matter before the court again (ne bis in idem). Furthermore, the judgment may have a prejudicial effect in subsequent proceedings to the extent a so-called prejudicial effect exists. However, the contentious judgment as a rule does not have direct legal effect on third parties.
What options exist for challenging a contentious judgment?
Ordinary remedies are available to the parties against a contentious judgment, in particular appeal (§ 511 et seq. ZPO) and, in certain cases, revision (§ 542 et seq. ZPO). An appeal is admissible if the value of the complaint is exceeded or if admission is granted by the judgment. In the appeal proceedings, the entire subject matter of the dispute is reviewed again, both in fact and law. In contrast, review on appeal is limited to legal errors. The judgment may also be challenged under certain conditions by reopening the proceedings (§§ 578 et seq. ZPO). Furthermore, a complaint for violation of the right to be heard may be lodged (§ 321a ZPO) if the right to be heard was violated.
How is enforcement based on a contentious judgment carried out?
Once the judgment has become final, the contentious judgment may serve as an enforceable title under § 704 ZPO. The prevailing party may obtain an enforceable copy of the judgment on request. With this, it can pursue enforcement measures against the losing party, for example by attachment, compulsory auction, or eviction. The ZPO distinguishes between provisional enforceability (before finality, if ordered by the court and usually against security) and enforcement after the judgment becomes formally final. The specific procedure depends on the nature of the claim titled and is carried out according to the relevant provisions of the ZPO.
What components must a contentious judgment compulsorily contain?
A contentious judgment must comply with the requirements of §§ 313 et seq. ZPO. It must consist of the heading (naming the parties and their representatives), operative part (formula of the decision, i.e., what the court orders), statement of facts (presentation of the state of the dispute, including the parties’ submissions and applications), and reasoning for the decision (legal and factual considerations that led to the decision). These reasons must demonstrably show how the court reached its decision and which legal considerations were decisive. If any of these components are missing, this may lead to the judgment being set aside on appeal.
What significance does the contentious judgment have in the overall system of civil procedure?
The contentious judgment is the standard method of contested adjudication in civil proceedings and is the centerpiece of the adversarial process. It provides for a binding determination of legal and factual disputes between the parties. Thus, the contentious judgment represents the most important form of decision, as opposed to simplified judgments such as default or acknowledgment judgments. It guarantees both parties’ procedural rights and right to be heard, and marks the conclusion of duly conducted proceedings after comprehensive clarification of the facts.
