The Neukölln district court had to consider in a recent decision on the question of whether an order against a minor Vollsteckungsbescheid, the Entegen § 170 paragraph 1 sentence 1 was not ZPO delivered to the legal representatives, but to the minors themselves, despite the in § 170 paragraph 1 sentence 2 CCP expressly arranged ineffectiveness of the two-week delivery time for appeal / objection period after § § 700 para 1 , 339 para 1 CCP in motion.
These unique, given the wording of § 170 paragraph 1 sentence 2 CCP ("Service was [...] ineffective") and § 339 para 1 CCP ("The objection period [...] begins with the service") at first somewhat strange sounding question their background in the law of the Federal (BGH) has. Indeed, in the past repeatedly held that the ineffective after § 170 paragraph 1 sentence 2 CCP notification triggers, despite the ineffectiveness of the opposition period § 339 para 1 CCP (see BGH of 25.3.1988, V ZR 1 / 87, NJW 1988, 2049). According to the BGH mean the invalidity of the service was not that this would be triggered by any legal consequences. The Supreme Court argued with his sense of the word statutory provision scarcely compatible Court either for reasons of legal certainty needed to ensure the formal legal force of decisions.
against this view had already the District Court of Hamburg-Harburg in a decision of 13.10.1997, Az 643 C 102/97, published in NJW-RR 1998, 791, turned and found with a convincing argument that an effective Protection of minors to the formal legal power of the higher value should be attached.
The Neukölln district court has changed in the present decision of this legal opinion of the District Court of Hamburg-Harburg now connected explicitly. Against the view of the Bundesgerichshofs it leads to:
"The Court considers that, for reasons the protection of minors that the law effects specified an incorrect delivery even in terms of legal certainty and the rule of peace may be seen differently and in principle to the legal power of enforcement notice expiry of the objection period should be considered despite deficient service. Even such a decision would not nachhaltich lead to computational peace because they gem. could § 579 paragraph 1 No. 4 ZPO be the nullity action brought subsequent to case.
of straight decisions in order for payment, where the consistency of the application not being evaluated further by the Court, is based process for minors and other handicapped persons a particular risk, because they also serve as Vollsteckungsgrundlage against them, even though they are - because under incapacity - not have been able to defend themselves. It can not be assumed without further assume that the legal representative of a minor received before the appeal period, notice of the transaction receives the the minor himself was served, and thus has the chance before the date on which an objection lodged. This is inconsistent with the basic idea of the protection of minors compatible ... "
Neukölln AG 10.9.2008 - Az 21 C 164/08
The decision can only be accepted as in fact is not obvious, whose protection of the Federal by his legal case against the text-oriented want to. The abstract value of the formal legal power can the repeal of the protection of minors can not be justified. This is even more than by the possibility of annulment of the decision a material force of law in any case can not be achieved. has informed
and annotated by lawyer Olaf Werner
