Preclusion

Introduction

Preclusion is a term from procedural law that refers to the loss of procedural rights due to lapses, such as missing deadlines. This article will take an in-depth look at the concept of preclusion, particularly in the context of German procedural law.

Definition of preclusion

In procedural law, preclusion refers to the legal consequence that certain procedural acts can no longer be performed because a deadline was missed or because an act was not performed in the prescribed manner. This may result in a party no longer being able to assert certain rights or objections in the further course of the proceedings.

Types of preclusion

There are different types of preclusion, which differ in their effect and preconditions:

1. temporal preclusion

This is about missing deadlines. Failure of a party to perform a certain act within a time limit set by law or by a court may cause the party to lose its right to perform that act.

2. factual preclusion

This type of preclusion concerns the content of procedural acts. If a party fails to submit certain facts or evidence in due time, they may be disregarded in the further proceedings.

Preclusion in civil procedure law

Preclusion plays an important role in German civil procedure law. According to the Code of Civil Procedure (ZPO), certain submissions and evidence are precluded if they are not raised in time.

Example:

Pursuant to Section 296 of the Code of Civil Procedure, new pleas and defenses raised after the expiration of a time limit set by the court must be taken into account by the court only if it can be shown that they could not have been raised earlier through no fault of the party.

Preclusion in administrative procedural law

There are also preclusion provisions in administrative procedural law. Here, they are particularly relevant in the context of the opposition proceedings. If a party does not raise certain objections within the objection period, they may be precluded in the court proceedings.

Preclusion in criminal procedure law

There are also preclusion rules in criminal procedural law, but they are less strict than in civil and administrative procedural law. Here, the focus is on the fact that the court investigates the facts of its own motion and that there is no strict binding on the parties’ submissions.

Consequences of preclusion

The consequences of preclusion can be serious. A party affected by preclusion loses the opportunity to assert certain rights or to present certain facts and evidence. This may result in the court not taking a fact into account or not taking it fully into account and the decision being to the disadvantage of the party concerned.

Preclusion avoidance

In order to avoid preclusion, it is important to know and observe the procedural deadlines and requirements precisely. Careful management of the process, if necessary with the support of a lawyer, is essential here.

Criticism of preclusion

Preclusion has been criticized in some quarters because it can mean that legitimate concerns can no longer be raised in court. In civil procedure law in particular, there is a debate as to whether the preclusion rules are too strict and whether they should be relaxed in certain cases.

Concluding remarks

Preclusion is an important concept in procedural law that serves to structure and expedite the proceedings. At the same time, it poses risks for parties who do not carefully observe their procedural obligations. It is therefore important to familiarize oneself with the preclusion rules and to ensure that the process is conducted carefully.