Means of Attack (Law)
Term and Definition
In German law, ‘means of attack’ is a collective term for all legal and factual means used by a party in judicial or extrajudicial proceedings to enforce, defend, or oppose their interests. Means of attack include, in particular, statements of fact, motions to present evidence, objections, defenses, and legal arguments. The term is mainly used in civil procedure law, but also appears in administrative, criminal, and labor court proceedings. In legal disputes, means of attack by one party are contrasted with ‘means of defense’, the latter encompassing all instruments aimed at refuting the opposing party’s presentation.
Means of Attack in Civil Procedure Law
Principle
In German civil procedure law, means of attack refer to all actions and declarations by which a party in a civil lawsuit wishes to shape, expand, substantiate, or prove the subject matter of the dispute. They are an essential component for effective enforcement of rights and are subject to numerous procedural regulations.
Types of Means of Attack
Means of attack can be differentiated as follows:
- Legal Means of Attack: These include, for example, legal arguments and the assertion of substantive legal claims or defenses.
- Factual Means of Attack: These encompass new factual assertions, offers of evidence, and submission of documents.
- Combined Means of Attack: Combination of legal and factual elements, for example new evidence for contested assertions of fact.
Preclusion and Admissibility of Means of Attack
According to Sections 296 et seq. of the Code of Civil Procedure (ZPO), means of attack are subject to the principle of promotion of proceedings and, as a rule, may only be introduced at specific procedural stages (in particular, at an early stage of proceedings). Later assertion may be rejected by the court under certain conditions (so-called preclusion), in order to avoid delays and safeguard the efficiency of the proceedings.
Example regulation:
- Section 296 (1) ZPO: Late presentation of means of attack may be rejected as untimely if their consideration would delay the resolution of the dispute and the delay is not excused.
Means of Attack and Judicial Duty to Give Hints
Pursuant to Section 139 ZPO, the court has a duty to give directions, which aims to prevent parties from failing to present means of attack in a timely manner. The court must indicate, for example, if a party’s submission is incomplete or essential means of attack are missing.
Means of Attack in Criminal Proceedings
In criminal procedure law (StPO), the term ‘means of attack’ does not exist as an expressly defined category. Nevertheless, in practice, all actions are subsumed under this term by which the defense or the public prosecutor’s office attack the allegations, the offers of evidence, or the legal foundations of the indictment. This includes, in particular:
- Motions to take evidence
- Objections to taking of evidence
- Motions to exclude expert witnesses
- Objections to procedural actions
The right to present means of attack in the main hearing is supported by the principle of truth-finding, such as the principle of legality and the court’s duty to investigate ex officio (Section 244 (2) StPO). A preclusion analogous to civil procedure law exists only in rare exceptional cases due to the inquisitorial principle.
Means of Attack in Administrative Proceedings
In administrative litigation, the term follows the corresponding meaning in civil procedure, but extends the scope to administrative law disputes. Here too, the Act on Proceedings in Administrative Courts (VwGO) regulates until when and to what extent means of attack may be submitted (Sections 86, 173 VwGO in conjunction with Sections 296 et seq. ZPO).
Means of Attack and the Law of Evidence
The close connection between means of attack and the law of evidence is due to the fact that many means of attack involve the assertion of certain facts, followed by the presentation of corresponding evidence. In particular, this includes:
- Witness statements
- Documents
- Expert reports
- Inspection of evidence
Proper assertion of means of attack is a prerequisite for consideration of the associated motion to take evidence.
Means of Attack in the Appeal Instance
Particularly strict rules apply to the presentation of new means of attack in appeal proceedings. According to Section 531 (2) ZPO, the introduction of new means of attack or defense in the appellate instance is generally excluded, unless they could not have been asserted without negligence in the first instance or are prompted by new circumstances.
Distinction: Means of Attack and Means of Defense
Means of attack must be distinguished from means of defense. While means of attack refer to a party’s submissions to substantiate or expand its claims or legal objectives, means of defense encompass all measures serving to refute the opposing party’s claims.
Case Law and Legal Literature
Case law has clarified the significance and rules for means of attack, particularly regarding preclusion provisions, the judicial duty to give hints, and the law of evidence. The relevant legal literature differentiates especially between permissible and impermissible means of attack as well as the individual rules in the respective procedural codes.
Summary and Significance in Legal Practice
The means of attack is a fundamental procedural instrument available to a party in nearly all judicial proceedings. The admissibility, form, and timing of the means of attack are governed by the respective procedural codes and are critical to the enforcement of rights and procedural fairness. Knowledge of the relevant provisions is indispensable for effective litigation.
Frequently Asked Questions
What role do means of attack play in the legal assessment of self-defense situations?
Means of attack are central to the legal assessment of a self-defense situation, as they largely determine how dangerous and imminent an attack is to be classified. Criminal law examination focuses especially on the means used by the attacker—whether, for example, it is a knife, a firearm, physical assault, or even unsuitable or seemingly harmless objects. Depending on the type and dangerousness of the means of attack used, not only the intensity of the defensive action may be influenced, but also the requirements of self-defense itself, such as necessity and proportionality. An attack carried out with a weapon generally justifies a more severe defensive reaction than one without a dangerous instrument. The court assesses in each individual case whether the defender responded appropriately to the respective means of attack.
Can everyday objects be legally classified as means of attack?
Yes, everyday objects can also be legally classified as means of attack if they are used in the course of an attack and are suitable to create a danger for the victim. The key factor is how the object is used in the specific case. For example, a ballpoint pen can be considered a dangerous instrument if appropriately used, such as being thrust toward the eyes. The classification is based on the objective risk potential in the specific situation and may also be relevant for the severity of punishment, for example when assessing dangerous bodily harm under Section 224 StGB.
Is merely threatening with a means of attack legally relevant?
Merely threatening with a means of attack can already establish a present danger and thus a situation of self-defense, provided the victim must take the threat seriously and it is suitable for presenting an imminent attack. In criminal law, it is examined whether, from the perspective of an objective observer, the situation exists in which an attack is imminent. The legal relevance does not necessarily arise from actual use of the means of attack, but from the creation of an acute threat situation.
What is the significance of the means of attack when assessing the proportionality of defense?
The means of attack plays a central role in assessing the necessity and proportionality of defense under Section 32 StGB. The more dangerous the means used by the attacker, the more intense the defensive action that is generally permitted. Case law requires that the defense be proportionate to the dangerousness of the situation. If the means of attack is intended to inflict significant injury or even death, a deadly defensive measure may also be justified. Conversely, milder means of defense are appropriate against less dangerous means of attack.
When can the use of a means of attack lead to the exclusion of self-defense?
Using an especially dangerous or excessive means of attack by the defender can result in self-defense itself being deemed unlawful, because it is no longer proportionate. This is the case, for example, when the use of the means of defense appears objectively disproportionate, such as resorting to a firearm against an attacker armed only with fists. In this situation, the court would examine whether less severe but equally effective means of defense were available to the person attacked. The boundary for so-called excessive self-defense under Section 33 StGB could, in individual cases, result in exemption from punishment if the act occurred in a state of asthenic affect.
Are there differences in the assessment of means of attack in civil and criminal law?
Yes, civil law (especially tort law) and criminal law apply different standards when assessing means of attack. In criminal law, the focus is on the concept of self-defense and the examination of necessity and proportionality, whereas civil law governs liability issues with respect to responsibility and equity (Section 227 BGB). While the principle of necessity also applies in civil law, there is often a more detailed weighing of mutual interests and circumstances, including the question of whether and how a certain means of attack was utilized. In extreme cases, this may result in partial liability or even exclusion of liability.
How are minors or persons with mental impairments treated legally in connection with means of attack?
When minors or persons with mental impairments use a means of attack, the relevant rules on exclusion of culpability or diminished capacity must be taken into account (Sections 19, 20, 21 StGB). This means that criminal responsibility for the use of a means of attack is excluded or limited if, due to age or mental condition, the person lacks the ability to appreciate wrongdoing or to control their actions. The general rules of self-defense continue to apply to defending against such persons; however, the proportionality of defense may be limited, as special duties of care towards obviously non-culpable attackers exist. This may raise the standard for proportionality of the defensive response.
