Definition of the adversarial judgment
An adversarial judgment is a term from procedural law and refers to a court judgment that is issued following an oral hearing in which both parties – plaintiff and defendant – were involved. This judgment presupposes that both parties had the opportunity during the contentious proceedings to present their respective positions, evidence, and arguments before the court and to address the submissions of the opposing party. The adversarial judgment thus stands in contrast to the so-called default judgment or other forms of judgments in which one party was not heard.
General information on the term adversarial judgment
The term “adversarial” derives from the Latin word “contradictio,” meaning “contradiction” or “counter-argument.” In the context of civil procedure, this means that the judgment is based on an adversarial, i.e., contentious exchange between the parties regarding the legally relevant facts and legal issues. The adversarial situation is the core feature of a disputed process and safeguards equality of arms as well as the right to be heard for both parties.
Legal basis
Code of Civil Procedure (ZPO)
The legal requirements and consequences of the adversarial judgment are regulated in the German Code of Civil Procedure. Essential provisions can be found particularly in Sections 128 et seq. ZPO. According to these, judgments are generally to be issued based on oral hearings and after both parties have been heard. The principle of adversarial proceedings is enshrined in the requirement of the right to be heard, stipulated in Article 103(1) of the Basic Law (GG).
Requirements
An adversarial judgment requires the following conditions:
- Both parties are involved in the proceedings and have been properly summoned.
- An oral hearing takes place (Section 128 ZPO).
- Both parties are given the opportunity to make statements and to present evidence.
- The decision is made on the basis of the entire content of the proceedings, taking both parties’ positions into account.
Distinction from other forms of judgment
The adversarial judgment differs in particular from the default judgment (Sections 331 et seq. ZPO), which is usually issued when a party fails to appear at or participate in the oral hearing. There is also the judgment upon acknowledgment (Section 307 ZPO) as well as the judgment upon waiver (Section 306 ZPO), each based on the unilateral declaration of a party.
Course of proceedings in adversarial judgments
Filing of the claim and service
An adversarial judgment requires a formally structured civil proceedings. After receipt and service of the complaint, the defendant is given the opportunity to defend against the claim (Sections 253 et seq. ZPO).
Contentious oral hearing
In one or more oral hearings, facts are presented, evidence is taken, and legal questions are discussed. Both parties may submit written pleadings, present their motions, and name witnesses.
Decision-making and pronouncement of the judgment
The court decides on the legal dispute after concluding deliberations and announces its judgment in a public session. The adversarial judgment is issued in writing, signed, and served on the parties (Section 310 ZPO). It contains the reasons for the decision, in which the court sets out its assessment of the facts and the status of the dispute.
Legal remedies against adversarial judgments
Against an adversarial judgment, the parties have access to the regular legal remedies in civil proceedings, in particular appeal (Sections 511 et seq. ZPO) and revision (Sections 542 et seq. ZPO). Unlike the default judgment, the adversarial judgment is immediately enforceable unless an appeal is lodged or there is suspensive effect.
Significance and function
Guarantee of the right to be heard
The adversarial judgment ensures that both parties can exercise their right to be heard. This is a fundamental principle for the rule of law in the proceedings and for substantive justice.
Equality of arms between parties
The adversarial judgment preserves procedural equality of arms, as both parties can fully set out their claims and defenses.
Basis for the res judicata effect
Only adversarial judgments have the full effect of res judicata according to Section 322 ZPO. This means that the subject matter of the dispute that has been decided can no longer be the subject of renewed litigation between the same parties in future.
Adversarial judgment in the international and European context
The adversarial principle is also of fundamental importance in other legal systems. In international civil procedural law, for example in the European Jurisdiction and Enforcement Regulation (EuGVVO/Brussels Ia Regulation), the adversarial hearing is a prerequisite for the recognition and enforcement of foreign judgments in Germany (Section 328(1) no. 2 ZPO).
Distinction: Adversarial judgment in criminal and administrative proceedings
The adversarial principle also plays a crucial role in criminal proceedings. Here, the adversarial judgment is given after a complete hearing of both sides during the main trial. In administrative proceedings, the adversarial judgment corresponds to the “disputed judgment,” which is issued following oral proceedings and with the participation of both parties to the proceedings.
Summary
The adversarial judgment is a central form of judgment in procedural law, in which both parties to a legal dispute can present their claims and defenses in a contentious oral hearing. This procedure guarantees the right to be heard, equality of arms, and the binding effect of the judgment under substantive law. The principle is anchored both in the Code of Civil Procedure and in criminal and administrative proceedings, and forms the basis for a fair and rule-of-law process.
Frequently asked questions
What legal requirements must be met for an adversarial judgment to be issued?
For an adversarial judgment to be issued in civil proceedings, it is crucial that the process is contentious, i.e., both parties – plaintiff and defendant – must actively participate in the proceedings. An adversarial judgment presupposes that both parties have been granted the right to be heard, i.e., each side had the opportunity to present its arguments and evidence. The complaint must have been properly served on the defendant so that they had the opportunity to respond and defend themselves. Furthermore, it is required that the court decides on the dispute following an oral hearing, provided that this is not dispensable due to a special procedural form (e.g., written proceedings). The adversarial judgment is thus issued after a comprehensive engagement with the facts and legal questions of the case and with the active involvement of both parties.
How does an adversarial judgment differ from a default judgment from a procedural perspective?
Unlike the default judgment, an adversarial judgment does not arise because of the default of a party, but because both parties are actually involved in the proceedings so that the legal dispute unfolds actively both unilaterally and bilaterally. In a default judgment, the defendant or plaintiff fails to appear or participate at the hearing and thus automatically loses. In contrast, the adversarial judgment is based on a full substantive review and assessment of the facts and legal arguments presented. In issuing an adversarial judgment, the court deals in detail with the positions of both parties and grounds its decision on the submissions of both sides. Adversarial judgments are therefore characterized procedurally by greater substantive depth and legal engagement.
What effect does an adversarial judgment have on the parties in terms of res judicata?
An adversarial judgment is binding on the parties (formal res judicata) once it becomes legally final, i.e., it can no longer be challenged by ordinary legal remedies such as appeal or revision. In addition, substantive res judicata takes effect, meaning that the decided matter is finally resolved for the parties and any subsequent assertion of identical claims becomes inadmissible due to the so-called “uniqueness effect” (res judicata effect under Section 322 ZPO). This is to prevent the same subject matter from being litigated again between the same parties; the judgment thus has a preclusive and prejudicial effect for subsequent proceedings, provided that the facts established by the judgment are identical.
Is it possible to subsequently set aside or amend an adversarial judgment?
As a rule, the option to set aside an adversarial judgment is limited to lodging legal remedies (appeal, revision) or legal recourses (restitutionary action, reopening of proceedings under Sections 578 et seq. ZPO). Once the judgment becomes final, it is generally binding. Subsequent amendment is only possible if, for example, new facts or evidence become known that justify a restitutionary action, or if procedural errors exist that result in the setting aside of the judgment on appeal. Otherwise, the judgment remains in force unless enforcement protection under Sections 765a, 719 ZPO applies in cases of particular hardship.
In which types of court proceedings is the adversarial judgment typically used?
The adversarial judgment is the classic form of decision in contentious civil proceedings and can be applied at all levels, whether in local courts, regional courts, or higher instances, provided both parties participate in the proceedings. It is also used in administrative proceedings and labor court proceedings, each adapted to the procedural specifics of the respective jurisdiction. Adversarial judgments can also be issued in family or social court proceedings, always provided that there is a contentious dispute with the active participation of both parties.
How is the obligation to state reasons fulfilled in the case of an adversarial judgment?
Courts are required to give detailed reasons for adversarial judgments (Section 313 ZPO). The judgment must provide a comprehensible account of the facts, the assessment of evidence, the legal considerations, and a thorough discussion of the arguments and applications put forward by the parties. On appeal, higher courts rigorously review whether the lower court has properly and comprehensibly considered the parties’ submissions. The obligation to state reasons serves the transparency and traceability of the decision-making process and ensures the parties’ right to be heard. A violation of this obligation may, under certain circumstances, constitute a significant procedural defect and result in the reversal of the judgment on appeal.
