a) According to § 538 para. 1 ZPO, the Appeals Tribunal must in principle gather the necessary evidence and decide on the case itself. Whether or not the proceedings in the first instance suffer from a material defect which exceptionally allows a remittal to the first instance court under Paragraph 538 2 No. 1 ZPO is to be judged solely on the basis of the substantive legal position of the court of first instance ,
b) If the business allocation plan does not provide for any special jurisdiction of a Civil Chamber according to § 348 para. 1 no. 2 e. ZPO, a decision by the single judge is not due to the fact that doctor-liability matters are in principle of the full staff have been a violation of the right to the statutory judge.
BGH JUDGMENT VI ZR 325 / 11 of 14. May 2013
XPO § 141 para 1, § 448, § 348 para. 1 letter e, § 538 para. 1, para. 2 sentence 1 no. 1, GC Art. 101 para. 1 sentence 2 Continue reading