Domestic Legal Protection against Foreign Judgments Inländischer Rechtsschutz gegen ausländische Urteile, Funktion und Reichweite von § 826 BGB als Abwehrinstrument gegen rechtskräftige Entscheidungen
Jahrgang 71 (2007) / Heft 3, S. 597-643 (47)
32,90 € inkl. gesetzl. MwSt.
Every legal system provides for a procedural mechanism to prevent the enforcement of fraudulently obtained judgments. Under German law, the substantive provision of § 826 BGB contains a right to claim compensation for intentionally inflicted harm in a manner that violates public policy. There is well-established jurisprudence that this delictual claim can be used against judgments regardless of the effect of res judicata. The article explores whether under § 826 BGB a debtor can also prevent enforcement of a foreign judgment. As a starting point, the various facilities available to a defendant for impeding a foreign procedure are looked at. As they are neither efficient nor desirable from the point of view of international comity, the focus turns to the recognition of judgments. At the outset, the scope of § 826 BGB is discussed in cases not having a cross-border configuration. It is argued that there is no interference with the procedural system of nullity of judgments contained in §§ 578 et seq. ZPO. The main part of the article is devoted to the international constellation. Here, the claim under § 826 BGB seems to conflict with the mechanism of recognition of foreign judgments contained in § 328 ZPO, especially the public policy clause contained in § 328 sec. 1 No. 4 ZPO. However, as this latter provision operates de iure and without application as soon as there is a foreign judgment, the claim under § 826 BGB loses its main pillar: Since the fraudulously obtained foreign judgment violates public policy, it is not recognised and therefore does not have any effect in German territory. The scope of application of § 826 BGB in these cases is thus limited to compensation of economic loss suffered through the procedure, e.g.expenses for counsel. In conclusion, the article turns to those cases where the judgment is recognised, but the enforcement procedure violates public policy. In these cases, it is submitted, the debtor can stop enforcement by invoking § 826 BGB.