Definition and general meaning of the term ‘Process’ in law
The term ‘Process’ (in German: Prozess, in English: process) generally refers, in a legal context, to a formal procedure for resolving legal disputes or claims before state or private decision-makers. Procedural law regulates the entirety of the rules determining the course of proceedings, the parties involved, and the decision-making process within judicial or extrajudicial proceedings.
Within various legal systems and areas of law, the term can have different connotations and legal implications. This article provides a comprehensive analysis of the term from various legal perspectives.
Types of Proceedings in Law
Civil Procedure
In civil procedure, claims between private law subjects are litigated. In Germany, the Code of Civil Procedure (ZPO) or comparable codes in other countries regulates the course of these proceedings. Typical matters in dispute include contractual claims, compensation claims, or claims to ownership.
Structure and Course of Civil Procedure
- Statement of claim: Filing the claim with a statement of facts and the claim’s request
- Service: Serving the claim on the defendant
- Answer to the claim: Opportunity for the defendant to submit a written response
- Oral hearing: Holding one or more oral hearings
- Taking of evidence: Taking and assessment of witness statements, documents, etc.
- Pronouncement of judgment: Decision and reasoning of the judgment by the court
- Legal remedies procedure: Possibility of appeal and revision
Importance for res judicata
Upon conclusion of the civil procedure by a final and binding judgment, both material and formal legal force are established—meaning the subject matter in dispute is decided conclusively and is excluded from being decided again in the same legal relationship.
Criminal Procedure
In criminal procedure, the aim is to determine whether a criminal offense has occurred and to sanction the wrongdoing, including the imposition of state sanctions. The procedure is primarily regulated by the Code of Criminal Procedure (StPO) as well as supplementary laws.
Phases of Criminal Procedure
- Preliminary investigation: Clarification of the facts of the case by investigative authorities and the public prosecutor’s office
- Intermediate proceedings: Examination of whether to open the main proceedings
- Main proceedings: Public oral hearing before the court
- Judgment: Determination of criminal liability and imposition of sanctions
- Legal remedies: Filing of appeal or revision against the judgment
Administrative Proceedings
The administrative process concerns disputes between citizens and the state in the area of public law. The Administrative Court Procedures Act (VwGO) governs the procedure before administrative courts.
Structure and Course
- Filing an action: Submitting an action against an administrative act or an omission by the authority
- Pre-proceedings: In certain cases, conducting an objection procedure
- Main proceedings: Judicial review of the contested administrative act
- Decision: Judgment or order of the administrative court
- Legal remedies: Appeal, revision, or complaint depending on the stage of the proceedings
Procedural Principles
Right to be heard
The parties must be given the opportunity to present their position and to respond to the arguments of the opposing side. The right to be heard is a fundamental procedural principle and is constitutionally protected.
Principle of publicity
Proceedings are generally to be held in public. Exceptions only apply where legally regulated grounds for exclusion exist, such as in juvenile criminal proceedings or where specific interests in protection are present.
Impartiality and independence of the court
The decision-makers in each process must act impartially and independently to ensure a fair conduct of proceedings.
Principle of expeditiousness
Court proceedings should be conducted within a reasonable time in order to avoid prolonged legal uncertainty for the parties involved.
Legal capacity to sue and to be a party
The capacity to sue is the ability to be a party in proceedings oneself or through representation. It mainly concerns the legal capacity of the parties involved. The capacity to be a party means the ability to bear procedural rights and obligations.
Legal representation and authorization
In many proceedings, representation by a legally qualified and authorized person is required. Specific rules apply to admission before the courts, to powers of attorney, and to the scope of representative authority.
Costs and bearing of costs in proceedings
The costs incurred in a proceeding include in particular court costs, expert fees if applicable, and the costs of legal representation. In civil proceedings, the basic rule is that the party that loses the case bears the costs of the procedure. In criminal proceedings, if found guilty, the convicted person usually bears the costs; in case of acquittal, the state treasury bears them.
Procedural Legal Remedies
Appeal
Through an appeal, a party may have a first-instance judgment reviewed both on factual and legal grounds.
Revision
Revision focuses on legal errors that may have occurred in the decision of the lower court.
Complaint
A complaint allows the challenge of certain court decisions, especially outside the main proceedings.
International and Supranational Concept of Process
Procedural rules also apply at the international level, such as before the European Court of Justice or the International Criminal Court. The framework is provided by rules under international and union law, as well as intergovernmental agreements.
Process as a Procedural Concept in Anglo-American Legal Systems
In Anglo-American law, the term ‘process’ frequently serves as a synonym for formal proceedings (‘legal process’). It particularly encompasses the service of official documents, the ordering and conducting of hearings, and decision-making by courts or comparable bodies.
Significance of Procedural Law
Procedural law forms the foundation for the enforcement of substantive rights in judicial and extrajudicial proceedings. It ensures an orderly course of proceedings, protects the positions of the parties involved, and serves the goal of enabling a legally certain and fair balance of interests.
References
- Code of Civil Procedure (ZPO)
- Code of Criminal Procedure (StPO)
- Administrative Court Procedures Act (VwGO)
- Courts Constitution Act (GVG)
- European Convention on Human Rights (ECHR), Art. 6 Right to a fair trial
- Federal Constitutional Court case law on procedural principles
In connection with ‘Process’, the exact classification according to the respective applicable area of law, the parties involved, and the substantive and procedural scope is of essential importance. The legal concept of process is at the center of dispute resolution and enforcement of rights in all legal systems.
Frequently asked questions
What significance does the proper course of a legal proceeding (process) have for safeguarding the rights of the parties involved?
The proper course of a legal proceeding is essential to safeguard the rights of the parties involved—such as publicity of proceedings, the right to be heard, the right to a fair trial, and effective legal protection. Procedural law sets out detailed rules to prevent discrimination, arbitrariness, and surprise decisions, and to ensure equal treatment of all parties involved. If procedural rules are violated, this can, depending on the nature of the error, lead to decisions being subject to challenge, procedural delays, retrial, or even the nullity of procedural acts. Especially from a constitutional and human rights perspective, the exact conduct of the process is a prerequisite for the legitimacy of judicial or administrative decisions.
What legal remedies are available against violations in the course of proceedings?
If procedural rights have been violated in the process, various remedies are available to the affected parties. Typical examples are interlocutory disputes, immediate complaints, appeals, revisions, or constitutional complaints (depending on the type of proceedings and jurisdiction). Specific legal remedies apply when legally defined rules regarding form, deadlines, or participation rights have been violated. In exceptional cases, for example breaches of fundamental principles (such as the right to be heard or the requirement of neutrality), the relevant court actions may be void. In administrative and criminal proceedings, further corrective mechanisms may arise, such as reinstatement to the previous state, retrial, or even official liability claims.
What role does the law of evidence play in procedural law?
The law of evidence regulates which facts in a proceeding may be established, by whom, and by what means. The relevant rules (for example, §§ 355 ff. ZPO) determine the burden of proof, the standard of proof, admissibility, and evaluation of evidence such as witnesses, documents, experts, inspection, and party testimony. The parties must substantiate their allegations and nominate appropriate evidence. The court bears responsibility for the correct taking and evaluation of evidence, so that procedural errors—such as a failure to take evidence despite an offer to do so—can render the decision unlawful and lead to reversal upon appeal. Rules on the exclusion of evidence prevent the use of unlawfully obtained evidence or evidence collected in violation of fundamental rights.
How are time limits and deadlines set in proceedings, and what legal consequences result from their being missed?
Time limits and deadlines are decisive for the speed and proper conduct of proceedings. Statutorily prescribed time limits (e.g. for appeals, claims) must be strictly observed. Failure to meet these deadlines generally results in the loss of the entitled procedural action (e.g., assertion of claims or lodging appeals). In justified exceptions, reinstatement to the previous state (§ 233 ZPO) may be granted if the default was not the party’s fault. Court-appointed time limits and deadlines serve to promote the procedure; if these are missed, the consequences can include imposition of enforcement measures, default decisions, or the imposition of costs. Compliance with deadlines must be documented in the court record and, along with correct calculation (days, weeks, months, non-extendable periods), is vital for procedural economy and legal certainty.
To what extent is the public nature of proceedings important, and what exceptions exist?
Publicity of proceedings is a fundamental principle, based in Germany on Art. 6 ECHR, Art. 20 GG, and §§ 169 ff. GVG. Public hearings ensure transparency, oversight, and trust in the judiciary. Exceptions exist, for instance, for youth protection interests, danger to investigative purposes, protection of personal data, duties of confidentiality, or reasons of morality—in these cases, the court may exclude the public. The decision to exclude the public is regularly subject to judicial review and must be recorded in the official record. Violations of the publicity requirement can result in procedural errors, and media reporting (sound, image, recording) is also legally restricted.
What are the key legal consequences of procedural errors in the process?
Procedural errors can vary in severity and range from limitations on objection to outright nullity of procedural acts. The consequences of errors are governed by the law on correction of errors: Minor errors remain without consequence, whereas serious defects can jeopardize the legal force, enforceability, or finality of a decision. In individual cases, this can lead to the repetition of procedural steps, remand to the lower court, or even complete annulment. In cases of particularly serious errors (e.g., challenge of a judge, procedural incapacity, lack of a hearing), a constitutional complaint may also be considered.
How do party status and capacity to be a party affect the course of the process?
Only participants with legal capacity (capacity to be a party and capacity to sue) can effectively appear as parties in proceedings. Party capacity is generally determined by civil law; in special cases (e.g., civil law partnerships, insolvency estates, joint heirships) there are specific rules regarding legal representation and the conduct of proceedings. If party capacity is in doubt, this is usually clarified in preliminary proceedings as effective participation is otherwise not possible. The careful examination of party status is thus an essential prerequisite for error-free proceedings and, in cases of obvious defects, will lead to immediate termination or suspension of the proceeding.
