Judges, Lawyers and Notaries

Question 1

,Role of a judge in a lawsuit

Answer 1

• manages and structures the proceedings
• plays an active role
• summons ordinary and expert witness
• can enforce the attendance of witness by subpoena (=Vorladung) when necessary
• takes relevant decision

Question 2

Role of a notary

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Answer 2

• independent and neutral perspective
• serves interest of all parties involved (=lawyers/ attorneys)
• ensures the balanced drafting and execution of enforceable contracts
• records certain types of contract
• only acts if notarial recording is provided for by statute
• parties bear fees (bearbeitungsgebühr) of the notarial recording
• draws up authentic acts

Question 3

Why is the notary called a preventive legal control?

Answer 3

• involving him is costly and time-consuming
• this ligitation about the validity and the meaning of contractual provisions in the aftermath of a transaction can be avoided

Question 4

What are the main fields of notarial recording?

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Answer 4

• land sales contracts
• marriage agreements
• partnership agreements
• establsihemnt of a mortage
• inheritance contracts
• joint wills

Question 5

What are the fields of activity of a notary?

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Answer 5

• notorial recording (recording declarations, reading to parties, records is authorized and sgined by parties)
• official certification (only attesting authenticity of signature, e.g. when documents must be presented to public authorities like Commercial Register)

Question 6

What is the notarial deed?

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Answer 6

• has increased value of evidence -> immediate enfoceable
• full proof of the persons mentioned in document
• comparable to a court judgement
• creditor can seize and exploit the assets of the debtor without filing a lawsuit (“submission to immediate enforcement into his assets”)

Question 7

What are the characteristics of judges?

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Answer 7

• highly qualified
• completely independent from external influences, neither from lawyers nor politicians
• responsible for the structure and orgamisation of the proceedings
• the final instance: in most cases court proceedings are nt necessary, judges tend to avoid litigation by mediation
• highly specialised in particular fields of law

Question 8

What is the lawyer´s role?

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Answer 8

• pro-active advisory advice
• legal advice to the parties
• summons witnesses
• prepares the lawsuit
• presents legal arguments
• files the necessary motion/ petitions according to the relevant rules of procedure