How do I change a court order?
Injunction: What You Need To Know
You are the owner of a company and you have found that your competition is copying the design of your products. Or you have been unlawfully terminated and have a right to continue doing your job - but your boss will not let you. Then the injunction (EV) can help you.
Whether competition law, commercial law or labor law: Regardless of the area in which you have been wronged, the injunction offers you temporary and quick legal protection. Read at the beginning under which circumstances you can obtain an injunction. In a second part, you will learn how to react to an injunction. I.
How can I obtain an injunction?
With a preliminary injunction, you ensure temporary legal protection - and always when there is particular urgency. "This can be the case, for example, if you have only just become aware of an infringement," explains the Freiburg lawyer Dr. Lukas Kalkbrenner.
With your application, you initiate urgent judicial proceedings that ensure the protection of your rights even before a court decision is made in the actual main proceedings. And mostly without a hearing and very promptly.
What are the prerequisites?
The preliminary injunction procedure is regulated in the Code of Civil Procedure (ZPO). The following requirements are necessary in order to be able to submit an application:
- There must be a right to dispose of: In plain language: You have to make your claim against the debtor credible. This can involve the surrender of urgently needed items or the omission of certain actions. However, as a rule, the claim in the urgent procedure may not be directed to the payment of money; an exception is the law on maintenance.
- There must be a reason for disposal: The advantage of the PA is that it offers quick legal protection. However, this is only granted if there is an urgent need for action. Accordingly, you must make the court credible as completely as possible that your claim is endangered or that the preservation of legal peace is in jeopardy without provisional legal protection. "It is important at this point that you make the particular urgency clear," advises DAV legal expert Dr. Lime burner. "This depends on the time at which you became aware of the infringement."
- You have to make your request credible: You have a claim and it is urgent. The task now is to make the facts plausible. In addition, all common evidence as well as documents or affidavits from you or witnesses come into question. Make the facts so clear to the court that there are no doubts about the correctness and urgency of your application. "It may even be necessary to respond to a pre-judicial presentation of the opposing party and to refute it in the application," says Dr. Lime burner. "You should enclose pre-judicial correspondence with the application so as not to withhold anything from the court."
- There must be a request for an injunction: A request for an injunction is nothing other than the submitted application. You can submit this directly to the competent court or for the record at the office.
The next step: execution of the injunction
If the court has ruled in favor of the applicant, the injunction is issued. From when the judicial title must be obeyed depends on the type of decision. The options are:
1. The court decides by decision
By decision means that the court has decided on the decree without an oral hearing. The decision only becomes valid if you, as the applicant, send the defendant the waiver within one month. As a rule, a certified copy of the enforceable copy of the decision is served. "This so-called enforcement is a prerequisite for the later enforcement from the judicial title," said legal expert Dr. Lime burner.
If the respondent was represented in the pre-trial court by a lawyer authorized to receive delivery, it is imperative that you send the certified copy to the lawyer. If there are several respondents, you must send a document to each of them. If the defendant was not represented by a lawyer, the defendant himself is served, preferably by the bailiff.
If you let the one-month deadline pass, the court can revoke the order - with negative consequences for you: "If you apply again, it will most likely be difficult to prove the urgency," explains the Freiburg lawyer.
2. The court decides by judgment
If the ruling was issued by a judgment after an oral hearing, the judgment is generally effective when it is promulgated. The one-month execution period begins immediately after the verdict. The court must issue the ruling within the deadline and the applicant must serve it on the defendant.
II. How can I avert an injunction?
Have you received an order and don't know how to deal with it? We will show you five options for legally reacting to an EV with the help of a lawyer:
Option 1: protective letter
If you suspect that an injunction could be issued against you, for example because you received a pre-judicial warning, you can submit a so-called protective letter to the Central Register of Protective Writings. In the protective letter you can show the competent court why a possible application is to be rejected - or at least not a decision should be made on it without an oral hearing. "With the help of a protective letter, you avoid that the court only decides on the basis of a one-sided presentation of the applicant," said Dr. Lime burner.
Option 2: objection
You can file an objection if a resolution has been issued without an oral hearing. Please note, however, that your legal remedy will not immediately revoke the injunction. As long as the court has not decided on your objection, you should therefore adhere to the conditions set out in the order. After submitting your objection, the court will give you an appointment for an oral hearing. During the hearing you will have the chance to defend your point of view. If the court has granted the objection, the ruling is off the table and the requirements are passé. The costs of the proceedings are charged to the unsuccessful party.
Option 3: appointment
If you appeal - because of a ruling issued after an oral hearing or a ruling confirmed after an objection - the case will be decided in the second instance. But be careful - a vocation is an opportunity and a risk at the same time. Should you lose the appeal process, you will automatically bear the entire procedural costs. Therefore, you should carefully consider how useful an appointment is in your case. Lawyers will be happy to advise you in this case.
Possibility 4: Forcing the main action to be taken
In doing so, you are forcing the applicant to file a main action within a period set by the court. If the applicant fails to meet this deadline, the temporary injunction can be revoked upon your application. This also applies if the main proceedings show that the order was wrongly issued. "The applicant then bears both the costs of the injunction and the main proceedings," said Kalkbrenner.
Option 5: Request for cancellation due to changed circumstances
If the circumstances have changed after a ruling has been issued, you as the respondent have the option of requesting that it be revoked. This is the case if, for example, there are changes in the law and changes in the highest court rulings that remove the ground from the right to dispose of the property.
Option 6: Final letter and final declaration
The final declaration is the most common and probably the quickest way to deal with an injunction - unless you feel you are wrong. After receiving the decree, you submit a final declaration. In the declaration, you recognize the temporary injunction as a final and binding regulation, so that separate main proceedings are no longer required. "It is imperative that you submit the final declaration promptly after delivery of the ruling," advises DAV legal expert Dr. Lime burner. "Otherwise there is a risk of a final letter from the other party, which will cause additional costs."
By the way: simply ignoring a ruling is not a solution. In case of doubt, a fine - for example in the form of a fine - is due very quickly if you do not adhere to the legal title. Also, keep in mind that an injunction is not a final settlement. The last word will be spoken in the main proceedings.
Who pays the cost of the procedure?
Who bears the costs for the interim injunction is in the decision on the disposition. Usually this is the respondent. "If the court awards less than the applicant has applied for, what is known as a cost ratio comes into consideration, in which the applicant is charged with proportional costs," explains the Freiburg lawyer.
The amount of the costs depends on the amount in dispute determined by the court. In addition, there are court costs and extrajudicial costs, for example the costs for a lawyer.
In contrast to a lawsuit, an applicant is exempt from the so-called advance payment obligation with regard to court costs. This means that the costs are not to be paid before, but after the court decision.
Claims for damages
In the event that you wrongly had to adhere to the requirements of a ruling, you can in principle claim damages from the applicant according to Section 945 ZPO. For example, if you were forced to close your store because of an edition and suffered from lost sales. This is a specific case of damage that you can assert through the court in the form of a claim for damages.
Our tip: get yourself a lawyer
The preliminary injunction procedure is complex and the solutions as diverse as the problem itself. A lawyer can help you keep track of things, request access to files and accompany you through the entire process.
- Is there a Jaguar Cheetah Hybrid
- How does the brain remember
- Have NITs dress codes
- What happens if a pilot is incapacitated
- What is the function of a restriction enzyme
- What is sour retrospect
- Which is expensive Bali or Seychelles
- Can I apply in GITAM now
- The scientific method could be improved
- Are Cedric Fanny and Habib Fanny related
- Why are Jodhpur girls so pretty?
- What are the best books on orchids
- Intelligent people have different brains
- How do I stir the welding
- Someone is trying to build a flying car
- Will the Ethereum value reach 500 in 2019
- Why is the punching shear calculated in the foundation
- Why are most Indian Americans alone
- Islam rejects technology
- Why are aluminum boats more expensive
- What is contained in cell biology
- What are some single player video games
- Can I deposit cash at an ATM?
- Where can I see Dunkirk 1