A request for bias - especially in civil law - should be carefully considered. Especially since this is rarely justified. But do you have to put up with everything from the court? Certainly not! Especially not if a There is reason that is suitable to justify mistrust of the impartiality of a judge, Section 42 (2) ZPO.
In one of the emissions scandal proceedings we conducted, a judge at the Chemnitz Regional Court did not accept that our client stayed away from the hearing. He was - legally absolutely permissible - represented by me by means of a power of attorney according to § 141 Abs. 3 ZPO. Even before the hearing began, this disturbed her so much that she announced that she would keep asking questions until I no longer know what to do and then impose a fine on our client. She ended this threat with the words “that's just how I am”.
After saying these words, I prepared the application for bias. What followed only confirmed the assumption that here not a fair and knowledgeable judgment more will follow. So the judge immediately asked the first question to (supposedly) lead me on the black ice. So she asked what the car would fill up with. I was a bit surprised that we were in "Diesel exhaust scandal" and the car also fills up with diesel, as evidenced by the vehicle registration document. But this did not convince the judge, because she was sure that a Subaru would only fill up with gasoline after all. However, the judge reluctantly accepted the answer and explained to us that none of this matters, since the plaintiff is certainly not actively legitimized. This means that the plaintiff cannot assert any claims. She justified this with the fact that the plaintiff was not the owner and that the vehicle registration document was not presented (which is correct). However, the judge failed to recognize that in the context of Section 826 of the German Civil Code (BGB) it is not at all a matter of ownership. Nor was she aware that the vehicle registration document did not identify the owner. It is admitted that even more people do not know this. The registration office also knows this and declares on every vehicle registration document “The holder of the registration certificate is not identified as the owner of the vehicle”.
This tragedy could no longer be expected of anyone. That is why we submitted our application for bias immediately and asked the judge for an official statement.
One would think that the court is trying to smooth things over in the context of the official statement - but far from it! The judge stated as follows:
“The entire process is ridiculous, the justification for a petition for bias pulled by the hair. The handwritten justification for the claimant representative's request for bias relates to a conversation before the main hearing was opened.
I asked where the client was. Mr Hendel replied that he was not there, that he was fully empowered in accordance with Section 141 (3) ZPO.
I can no longer remember the exact wording, but I have pointed out that in the event of ignorance or inability to answer judicial questions, a fine may be imposed. This can be read in the commentary on the civil procedural rules at Zöller on § 141 marginal nos. 12 and 19. The further progress of the hearing results from the minutes of February 24.02.2021, 97, sheet XNUMX if of the files.
Mr. Hendel has also submitted a brief dated March 13.03.2021, 104, sheet 1 if of the files. There you will find further remarks such as “the chairwoman was very disturbed” (page 104, sheet XNUMX of the files).
“The chairman was not satisfied with this answer” (page 2, sheet 105 of the files). The chairwoman then reluctantly accepted this (ibid.).
I value these representations as very subjective impressions that lack any serious basis. The whole thing is ridiculous. I am also of the opinion that only a few lawyers feel threatened by the reference to the consequences of such a power of attorney, namely the possible imposition of a fine.
Of course, after the meeting was over, I asked Dr. H. expressed my regret that after 3,5 hours of traveling there was no clarification of the matter for him. But I also wished Mr Hendel a safe trip home because he was very excited.
I would also like to note that Mr Hendel verbally said some very ugly things to me that I do not want to repeat here and that Mr Hendel did not mention in his written statements. In my opinion, Mr. Hendel has behaved in such a way that it is unworthy of a lawyer. But that won't do him any good either, the lawsuit rests on feet of clay. To clarify the matter, I ordered the plaintiff to appear in person, who certainly does not know how his legal representative is behaving. "
Ok, then I behaved unworthily of a lawyer. But do you have to accept everything? Certainly not!
This was then confirmed by the Chemnitz Regional Court, file number 6 Ri AR 2/21 with the following reason:
The rejection of the judge at the regional court P. by the plaintiff is declared to be well founded.
In accordance with § 43, 44 ZPO, the application is submitted in the correct form.
The request for bias is also justified. A rejection due to concerns about bias occurs if there is a reason that is suitable to justify mistrust of the impartiality of a judge (42 para. 2 ZPO). It does not matter whether the mistrust of those involved is actually justified. The only decisive factor is that from his point of view - here from the point of view of the plaintiff - there is an objective reason for mistrust of the rejected judge, i.e. whether from the point of view of the party rejecting the judge, given reasonable assessment of all circumstances, there is reason to be impartial and to doubt the judge's objective attitude (st. rspr., cf. only BGH, ruling of December 17.12.2009, 55, III ZB 09/32, quoted from juris). Correspondingly, the focus should not be on a possibly subjective point of view of the party involved, but on the perspective of the rejecting party “when viewed reasonably” (cf. Zöller Vollkommer-, ZPO, 42nd edition, § 9, No. XNUMX with further references).
It is true that, according to the general opinion, a judge's refusal can in principle not be based on a wrong procedure or the legal opinion of a judge. Whether a judicial decision was "wrong" in terms of content is fundamentally irrelevant for the rejection procedure (cf. in general, for example, BayObLGZ 86, 253; 87,217, 32). The rejection of bias is not an instrument for checking errors and procedures. The rejection procedure is solely about the possible partiality of the judge and not about the correctness of his actions and decisions. A request for bias can therefore only be based on incorrect legal handling if reasons are presented that suggest that the defect is based on the judge's prejudice towards the rejecting party or on arbitrariness (see e.g. Zöller / Vollkommer ZPO, 42. Ed., Section 28, marginal number XNUMX with further references).
Bias of a judge in the event of procedural violations can therefore be assumed as an exception if the design of the procedure and the judge's decision differ so far from the recognized legal, in particular constitutional principles, that they no longer appear understandable and obviously untenable from the point of view of the party and thereby gives the impression of an arbitrary or at least irrelevant attitude on the part of the judge.
In her official statement, the rejected judge did not explicitly deny that she had announced after submitting the power of attorney according to § 141 III ZPO that she would then ask the plaintiff's representative questions until he no longer knew what to do, and after threatening one I closed the fine with the words “that's how I am”.
Given the reasonable consideration required, the concerns of the plaintiff cannot be dismissed out of hand.
In fact, the wording in the official statement of the rejected judge, the entire process was "ridiculous" and Mr. Hendel behaved in such a way that "it is unworthy of a lawyer", but "that too" would "be of no use to him", the lawsuit stands "on feet of clay" in the overall view to justify the concern of bias, since this also gives rise to the fear that the judge could no longer lead and decide the legal dispute objectively and impartially.
The official statement therefore also justifies the concern about bias.
Our client has a new, impartial judge and now has the best chances of a fair trial!