What is an Appeal Test

BGH, decision from 04/30/2020 - File number IX ZB 52/19



In his lawsuit filed with the court on March 14, 2015, the plaintiff demanded payment of € 11,810.41 plus interest, information, reimbursement of pre-trial costs and exemption from further legal fees. By judgment of November 19, 2015, the defendant was sentenced to pay € 11,810.41 plus interest and reimbursement of pre-trial costs plus interest. The judgment was served on the defendant on November 26, 2015. On November 26, 2015, the defendant appealed.

On December 7, 2015, insolvency proceedings were opened against the defendant's assets. Self-administration was ordered. The defendant submitted an insolvency plan, which was accepted by the creditors with the required majorities and confirmed by the court on December 30, 2016. With a resolution dated May 15, 2017, the insolvency proceedings were lifted.

In a letter dated September 18, 2018, the plaintiff requested that the proceedings be continued. The defendant has objected to the request. She said that the plaintiff lacked the need for legal protection because enforcement of titles obtained outside of the insolvency proceedings was inadmissible in accordance with Section 11 (2) of the insolvency plan. By decision of June 24, 2019, the appellate court rejected the defendant's appeal as inadmissible. The defendant's appeal on points of law is directed against this decision, with which the defendant intends to have the contested decision set aside and the matter referred back to the appellate court.


The appeal on a point of law is admissible according to Section 522, Paragraph 1, Clause 4, Section 574, Paragraph 1, Clause 1 No. 1ZPO. However, it is not permitted. The legal case has no fundamental significance and neither the further development of the law nor the safeguarding of uniform case law requires a decision by the appellate court (Section 574 (2) ZPO).

1. The appellate court stated: The defendant's appeal was inadmissible because it was not justified in due time. The appeal was filed in good time. During the notice period, the legal dispute was interrupted by the opening of insolvency proceedings against the defendant's assets. With that the running of the period according to §§ 240, 249 Abs. 1ZPO ended. Two days after the announcement of the cancellation of the bankruptcy proceedings, on May 19, 2017, the interruption ended by law. According to Section 249 (1) ZPO, the time limit for the appeal began again. No grounds for appeal had been received by the end of the two-month period on July 19, 2017. Reinstatement in the previous status had not been requested and could not be granted ex officio, because the defendant was not prevented, through no fault of its own, from observing the deadline for the reasoning of the appeal.

2. These statements stand up to legal scrutiny. The defendant's appeal had to be rejected as inadmissible because it was not justified in due time (Section 522 (1) sentence 2 ZPO). With the opening of insolvency proceedings against the defendant's assets, the legal dispute was interrupted in accordance with Section 240ZPO. The interruption ended ipso jure with the cancellation of the insolvency proceedings (see BGH, judgment of January 13, 1975 - VII ZR 220/73, BGHZ 64, 1 f; decision of September 28, 1989 - VII ZR 115/89, NJW 1990, 1239; in each case for the termination of bankruptcy proceedings according to §§ 202 ff KO; Stein / Jonas / Roth, ZPO, 23rd edition, § 240 marginal number 32; Zöller / Greger, ZPO, 33rd edition, § 240 marginal number 19) . After the end of the interruption, the deadline for justifying the appeal in accordance with Section 249 (1) ZPO began to run again. There was no need to set a specific deadline (see BGH, judgment of January 13, 1975, op. Cit., P. 3; decision of September 28, 1989, op. Cit.). The defendant did not submit any grounds for appeal within this period, which was correctly calculated by the appellate court.

3. The reasons for admissibility asserted by the appeal on points of law (Section 574 (2) ZPO) are nonexistent.

a) The appeal on a point of law considers the action to be inadmissible because the claim has been regulated in the insolvency plan in a binding manner for both parties. To do this, it relies on the admissibility of fundamental importance. How to proceed in a legal dispute that began before the opening of insolvency, if the claim and its enforcement were comprehensively regulated in an insolvency plan, is unclear.

The question of the lack of admissibility of the action with regard to the insolvency plan could have been clarified in the appeal proceedings. After the defendant had missed the deadline to justify the appeal, the appeal could only be rejected as inadmissible (Section 522 (1) sentence 2 ZPO).

b) The appeal on points of law also alleges a violation of the defendant's right to be heard (Art. 103, Paragraph 1GG). The court of appeal issued a notice on December 4, 2018 that the legal dispute with regard to the insolvency plan had been settled. It then rejected the defendant's appeal as inadmissible without first pointing out its changed legal opinion. In this respect, the legal complaint relies on the admissibility of ensuring uniform jurisdiction.

Any failure to refer to the missed deadline to give reasons for appeal and the provision of Section 522 (1) sentence 2 ZPO did not affect the decision of the court of appeal. At the time of the first notification, on December 4, 2018, the deadline for appeal had already expired. Incidentally, the grounds for the appeal do not reveal what the defendant would have put forward in response to a further judicial reference.