Strategische Verhinderung von Präjudizien

Abstract

This work examines the litigation strategy — most commonly employed by defendants in mass litigation — of seeking to prevent unfavorable appellate and supreme court rulings due to their anticipated broad impact, within the context of the purposes of civil procedure, particularly the law of appeals. On the one hand, the strategic prevention of precedent is a legitimate expression of the principle of party disposition; on the other hand, it runs counter to the public’s need for legal certainty and the development of the law. The author evaluates the recently introduced Leitentscheidungsverfahren at the Federal Court of Justice and proposes a solution de lege ferenda to strengthen the supra-individual objectives of civil procedure.