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- The escape into default is a tactical approach in German civil procedure law.
- It is used to obtain a default judgment and later to lodge an appeal.
- The reasons are often more preparation time or the delay of a procedure.
- Regulations can be found in §§ 330 ff. ZPO.
- Risks include court costs and the possible rejection of the appeal.
- The strategy should be considered from an ethical point of view.
- Alternatives such as active defense or settlement are also possible.
Introduction
Flight by default is a term from German civil procedure law and refers to a tactical approach that can be used by a defendant in a court case. This strategy is usually used when the defendant believes that it is likely to lose in the regular proceedings and tries to influence the trial in its favor.
What does escape into default mean?
Flight by default means that the defendant intentionally fails to attend the hearing, which results in a default judgment against him. After the default judgment is issued, the defendant files an objection. The objection results in the proceedings being continued and the defendant now has the opportunity to present its defense.
Why escape into default?
The reasons for using this strategy can be many. A common reason is that the defendant needs more time to prepare its defense. Another reason could be that the defendant is trying to delay the proceedings in order to force a settlement or to tire out the plaintiff’s side.
Legal framework
The escape into default is regulated in German civil procedure law in §§ 330 ff. ZPO. Pursuant to Section 330 of the Code of Civil Procedure, the defendant may file an objection to the default judgment. The appeal must be lodged within two weeks of service of the judgment. Pursuant to Section 339 of the Code of Civil Procedure, after the filing of an objection, the proceedings are generally continued as if the default judgment had not been issued.
Risks and disadvantages
Escaping into default is fraught with risk. First, the court may impose costs against the defaulting party. In addition, there is a risk that the court will reject the objection as unfounded if it considers that the default was not justified. Furthermore, the default judgment may be enforced as long as the appeal has not been decided.
Practical considerations
It is important to note that defaulting is a risky strategy and should be carefully considered. It is advisable to seek legal advice before deciding on this course of action. In addition, the Respondent should ensure that it takes all necessary steps to protect its rights in the proceedings.
Conclusion
Flight by default is a tactical approach in German civil procedure law that allows the defendant to have a default judgment entered against it and then file an objection to continue the proceedings. This strategy can be advantageous under certain circumstances, but it is associated with considerable risks and should therefore be used with caution.
Difference from other strategies
It is important to understand that fleeing by default is one of several possible strategies in a court case. It differs from other defense strategies, such as active defense, in which the defendant participates in the proceedings from the beginning and presents its defense.
Ethics and professionalism
The decision to use default as a strategy should also be considered from an ethical perspective. It is important that lawyers and parties respect the integrity of the legal system and do not attempt to manipulate or abuse the system.
Examples and case studies
In practice, there are several examples in which the flight to default has been applied. These examples can help provide a better understanding of how this strategy works in practice and the consequences it can have.
Alternatives to the escape into default
There are also alternative strategies that can be considered in lieu of default escape. This includes, for example, active participation in the proceedings from the very beginning or seeking an out-of-court settlement.
Concluding remarks
Fleeing into default is a complex and risky strategy that can be used in certain cases under German civil procedure law. It is important to understand the legal framework, risks, and ethical considerations and to carefully consider whether this strategy is appropriate in a particular case.
