Dienstleistungsportal Bayern

Description

Prerequisites

The prerequisite is that the applicant is unable to meet the costs of litigation, or can only meet them in part or in installments, based on his or her personal and economic circumstances. In addition, the intended legal action or legal defense must offer sufficient prospects of success and must not appear to be wanton.

In order to determine the applicant's financial capacity, the so-called income to be used must be determined. This is the net income less certain amounts that must be available to the applicant and his or her family for living expenses, the costs of housing and heating, and any extraordinary burdens. Of the remaining amount of monthly income, up to 48 monthly installments equal to half of the income to be used must be applied. The applicant must also use his or her assets, insofar as this is reasonable for him or her.

Legal aid shall not be granted if the costs of the legal proceedings are not expected to exceed four monthly installments plus the partial amounts to be paid from the assets.

There is a reasonable prospect of success if the court considers the legal position of the applicant to be justifiable and is convinced that it is possible to adduce evidence.

The prosecution or legal defense is deemed to be wanton if a party who does not claim legal aid would refrain from prosecuting or defending the case if all the circumstances were reasonably assessed.

Procedure

The application for legal aid must be submitted in writing, via electronic legal communication or orally on the record of the court's registry. It is not permissible to submit an application for legal aid by e-mail. Information on how to communicate digitally with the court can be found on the websites of the respective court.

The competent court is the trial court, the court dealing with the enforcement proceedings or - if the enforcement is carried out by the bailiff - the district court competent for the debtor's place of residence.

The application must describe the dispute and the evidence. A fully completed declaration of personal and financial circumstances (in particular income, assets, maintenance obligations and other liabilities) as well as supporting documents relating to the information provided must be enclosed. A form must be used for the declaration, which can be obtained from the court or on the Internet via the federal and state justice portal.

The court may make inquiries to assess the prospects of success and to assess whether the prosecution appears to be wilful. In particular, it may order the production of documents and obtain information. Witnesses and experts shall only be heard in exceptional cases. Before legal aid is granted, the applicant's opponent must normally be given the opportunity to comment.

Special notes

The indigent party must notify the court of a change of address without delay on his or her own initiative.

If the financial circumstances of the needy party improve, he/she must also inform the court immediately. An improvement in income shall be deemed to be substantial if the difference from the gross income previously taken as a basis exceeds EUR 100 not only once. The same limit is to be applied if charges that can be taken into account no longer apply.

If a party's financial circumstances deteriorate, a new application may be appropriate if the application for legal aid was previously rejected.

Forms

• Form, Bavaria-wide: Antrag auf Prozesskostenhilfe / Verfahrenskostenhilfe

  Please note

  This form has to be signed and sent to the responsible authority. You can sign the form manually and send it by email/fax or sign the form electronically with your qualified electronic signature an send it by (secure) email. If the responsible authority has set up a De-Mail account, you can also send the form by De-Mail using an sender-confirmed message.

Legal bases

• §§ 76 - 78 Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG)
• § 113 Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG)
• § 246 Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG)
• § 11a Arbeitsgerichtsgesetz (ArbGG)
• § 73a Sozialgerichtsgesetz (SGG)
• § 166 Verwaltungsgerichtsordnung (VwGO)
• §§ 114-127 Zivilprozessordnung (ZPO)

Remedy

The granting of legal aid can only be challenged by the State Treasury to a limited extent. The refusal or withdrawal of legal aid may, under certain conditions, be challenged by the party concerned by means of an immediate appeal.

Links to more information

• Justizportal des Bundes und der Länder

Related issues

• Counseling assistance; application
• Fiscal court proceedings; filing of an action with the fiscal court.
• Administrative justice; information