If a lawyer lets an employee check the existence of a valid, qualified electronic signature on written submissions subject to a deadline, detailed, clear instructions are required. Reason: checking an electronic signature is much more demanding than looking at an analogue document.
If a lawyer lets an employee check the existence of a valid, qualified electronic signature on written submissions subject to a deadline, detailed, clear instructions are required. Reason: checking an electronic signature is much more demanding than looking at an analogue document.
Failure to appeal deadlines as well as the prerequisites for reinstatement in the previous status in the event of non-culpable failure to meet deadlines are repeatedly the subject of higher court decisions. The specific ones have been causing particular problems for some time Requirements in the context of electronic legal transactions. The OLG Braunschweig recently passed the requirements for checking the presence of a qualified electronic signature (qeS) Specified in an appeal statement.
Appeal statement sent with invalid qeS
The subject of the case decided by the OLG was the legal dispute about the effectiveness of the revocation of a loan agreement to finance a vehicle purchase. The vehicle was with a Diesel-Abgasmanipulations-Software fitted. In the first instance, the buyer’s action for reversal was rejected. The plaintiff’s statement of grounds of appeal was received by the OLG on the last day of the extended statement of reasons by EGVP. The qeS of the brief was incorrect and therefore invalid.
Specialist lawyer instructed to double-check
In response to a corresponding reference by the court, the plaintiff’s representative applied for restitution to the previous status. As a justification, he pointed to the one that had been used in his house for years Lawyer software program from a renowned publisher down. His employee, who has been a reliable attorney for years, is instructed to use this program to check the correct submission of deadline-bound documents and attachments and the existence of a qeS.
In addition, his employee is instructed to check the correct dispatch via the control of the beA mailbox.
Legal software reported successful timely submission
With regard to the specific justification of the appeal, the plaintiff’s representative pointed out that he had loaded the statement of the appeal into the outbox of his software program and signed it at the push of a button. The signature was successfully displayed with a red ribbon. There was no error message or warning. His colleague then properly sent the pleading. The beA reported the timely receipt to the OLG. The lawyer confirmed his lecture by a affidavit of his employee as well as one Screenshot of his lawyer software, which indicated an error-free delivery.
Reinstatement would be possible with proper employee training
In its decision, the OLG Braunschweig initially determined that the granting of reinstatement in the previous status is not ruled out by the fact that the legal representative is at fault due to a possibly negligently neglected qeS. The submission of an improperly signed statement of grounds of appeal is usually a matter for the appellant According to § 85 Abs. 2 ZPO attributable lawyer fault (BGH, decision of December 17, 2015, V ZB 161/14). But the lawyer did it as part of his office organization
- through specific instructions to his responsible employees Precaution taken,
- that with normal course of the things
- the missed Justification of appealdeadline could have been met with certainty,
thus reinstatement in the previous status can in principle be granted even if the grounds of appeal are not properly signed (BGH, decision of 13.3.2014, IX ZB 47/13).
Checking electronic mailings is very demanding
The Senate left the question unanswered as to whether these principles can be transferred 1: 1 to the sending of an appeal statement by electronic means. According to the Senate, the control of an electronic signature is unequal more demanding than looking at the signature field of an analogue document. According to the decision of the OLG, however, the instructions given by the plaintiff’s representative to his legal specialist after his own presentation did not meet the requirements of such an instruction.
Decisive button: “Check signature”
According to the findings of the Senate, the plaintiff’s representative had set out in detail how the employee had to make sure of proper access and the existence of a valid signature using the firm’s software, but the statement left the same Instructions for checking the beA mailbox miss.
The Instruction, to also check the dispatch via the beA interface of the law firm program too general and unspecific. In particular, the necessary concrete information is lacking Instruction to press the button “Check signature“To press and view the test report. In a general dispatch check – as specified by the lawyer – by logging into the beA web portal, a signature error is not even noticed. Such is only when the button “Check signature“Recognizable.
Request for restitution insufficiently justified
The OLG can thus come to the conclusion that the instruction to check the correct dispatch of the statement of grounds of appeal in the beA mailbox was generally unsuitable for ensuring the effective submission of the statement of grounds within the deadline for the statement of reasons.
Even if the employee had meticulously implemented the instructions, the signature error would have remained undetected. The Senate therefore rejected the request for re-establishment as insufficiently justified.
The appeal was inadmissible
In the opinion of the OLG, there was no need to point out that the presentation was incomplete in accordance with Section 139 of the German Code of Civil Procedure (ZPO), since the reasons for the application for reinstatement could no longer be made up after the expiry of the period under Sections 234, 236 of the German Code of Civil Procedure. As a result, the appeal was time-limited and therefore inadmissible.
(OLG Braunschweig, decision of November 18, 2020, 11 U 315/20)
Background: case law on re-establishment
In the past few years, the BGH has also dealt with the problem of reinstatement in the previous status if deadlines for appeal are missed and issued a number of decisions on this. In principle, the Federal Court of Justice took the view that lawyers may, in principle, grant specific and detailed instructions to reliable employees of their law firm in the context of the exit control of written submissions.
Control requirements must not be overstretched
The BGH and the BVerfG have pointed out that in the context of reinstatement decisions, which often have serious consequences for the parties seeking justice, also Basic procedural right to the granting of effective legal protection according to Art. 2 Abs. 1 GG in connection with Art. 20 Abs. 3 GG is to be charged appropriately (BGH, decision of 16.11.2016, VII ZB 35/14; BVerfG, decision of 9.10.2007, 1 BvR 1784/05).
Principle of reinstatement if the deadline is missed through no fault of one’s own
In the opinion of the BGH, the reinstatement provision of § 233 sentence 1 ZPO contains the basic assessment of the legislature that a party who was prevented from observing a period of appeal through no fault of their own should as a rule be granted reinstatement in its previous status upon application. According to the established case law of the BGH, in the case of a basically timely Filing an unsigned statement of appeal Reinstatement in the previous status will be granted if the legal representative has instructed his office staff to check all outgoing written documents for the presence of a signature before sending them (BGH, ruling of July 15, 2014, VI ZB 15/14; BGH, ruling v. February 19, 2020, XII ZB 458/19 BGH, decision of July 2, 2020, VII ZB 46/19). If the office staff has been working reliably for a long time, the lawyer is not obliged to carry out regular or random checks (BGH, decision of 13.1.2016, XII ZB 653/14).
Fundamental decisions by the BGH on electronic legal transactions are still pending
The decision of the OLG Braunschweig appears to be rather strict against the background of the BGH case law. It remains to be seen exactly how the BGH will transfer the principles it has drawn up for the analog submission of written submissions to the electronic version.
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Legal organizational duties in Legal Tech mass proceedings
Deadline control in the law firm must be designed in two stages
Legal obligations to meet deadlines in the event of technical transmission problems
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