Law on legal advice and representation for low-income citizens (Advisory Assistance Act-BerHG)

Unofficial table of contents

BerHG

Date of completion: 18.06.1980

Full quote:

" Advisory Assistance Act of 18 June 1980 (BGBl. 689), most recently by Article 2 of the Law of 31 August 2013 (BGBl). 3533).

Status:

Last amended by Art. 2 G v. 31.8.2013 I 3533

For more details, please refer to the menu under Notes

Footnote

(+ + + Text evidence from: 1.1.1981 + + +) 
(+ + + measures for beigetr.  five countries, see  Advisory HiG Appendix EV + + +) 

  

Headline: Legalabbreviation. By Art. 2 No. 1 G v. 15.12.2004 I 3392 mWv 21.12.2004
The G is in the acceding five countries (Art. 1 (1) EinigVtr) gem. L. I chap. III Sachg. A Sect. III No. 10 EinigVtr v. 31.8.1990 iVm Art. 1 G v. 23.9.1990 II 885, 927 with measures entered into force; in the part of the Land of Berlin, in which the Basic Law has not been applied until now, it is valid according to the law. Sect. IV No 2. g. g EinigVtr without measurement Unofficial table of contents

§ 1

(1) Assistance for the exercise of rights outside a judicial procedure and in the compulsory quality procedure pursuant to Section 15a of the Act concerning the introduction of the Code of Civil Procedure (Counseling Assistance) shall be granted upon request, if:

1.

the person seeking the right cannot raise the necessary funds in accordance with his or her personal and economic circumstances;

2.

there are no other means available for assistance to be granted to the right-seeker,

3.

the use of the advisory assistance does not appear to be willingly.

(2) The conditions set out in paragraph 1 (1) shall be fulfilled if, in accordance with the provisions of the Code of Civil Procedure, the legal aid for legal aid would be granted without a separate contribution to the costs. The possibility of being advised or represented by an attorney free of charge or against an agreement of a success meeting shall not be any other means of assistance within the meaning of paragraph 1 (2). (3) Mutwilliness shall be the case if: Advice is used even though a legal seeker who does not claim an advisory assistance would, in the case of a permanent appraisal of all circumstances of the legal matter, disregard himself from being legally counseled or represented at his own expense. . The assessment of the mutuality shall take into account the knowledge and skills of the applicant and the particular economic situation of the applicant. Unofficial table of contents

§ 2

(1) Consultation assistance shall be provided in consultation and, where necessary, in representation. A representation is required if, in the light of the scope, difficulty or importance of the legal profession for him, the right-seeking person cannot exercise his rights himself. (2) Consultation aid under this law will be provided in all legal matters. In matters relating to criminal law and the right to the right of order, only advice shall be granted. (3) Assistance under this Act shall not be granted in matters in which the law of other States is to be applied, unless the facts of the case are not Relationship to the Inland. Unofficial table of contents

§ 3

(1) The advisory assistance shall be provided by lawyers and by legal counsel who are a member of a bar. In the scope of its respective power of legal advice, it shall also be granted by:

1.

Tax adviser and tax representative,

2.

Auditor and sworn accountant as well as

3.

Pension adviser.

It may also be granted through the persons referred to in sentences 1 and 2 (advisers) in counselling centres established under an agreement with the Land Justice Administration. (2) The advisory assistance may also be provided by the In so far as the request can be met by an immediate information, an indication of other means of assistance or the inclusion of an application or a declaration may be granted to the Local Court. Unofficial table of contents

§ 4

(1) The District Court, in whose district the legal seeker has its general place of jurisdiction, shall decide on the request for advice. If the legal seeker does not have a general place of jurisdiction in Germany, the district court has jurisdiction in the district of which there is a need for counseling assistance. (2) The application can be made verbally or in writing. The case for which advice is requested shall be indicated. (3) The application shall be accompanied by:

1.

a declaration by the applicant of his personal and economic circumstances, in particular information relating to marienal status, occupation, assets, income and burdens, as well as corresponding supporting documents; and

2.

an insurance of the right-seeker that, in the same matter, he has so far not been given advice or has been denied by the court, and that no legal proceedings have been or have been pending in the same matter.

(4) The Court of First Instance may require the applicant to make his actual information credible and, in particular, may also require the lodging of an insurance on oath. It may make surveys, in particular order the presentation of documents and obtain information. Witnesses and experts shall not be heard. (5) Where, within a time-limit set by the court, the person seeking the right did not give evidence of his or her personal and economic circumstances, or did not ask certain questions, or (6) In cases of subsequent application (Section 6 (2)), the adviser may, before the beginning of the advisory assistance, request that the applicant be his/her own personal data. and economic conditions, and explains that he is in the same It has not been granted or failed by the Court of First Instance, and that no legal proceedings have been or have been pending in the same matter. Unofficial table of contents

§ 5

The provisions of the Law on the Procedure in Family Matters and in the Matters of Voluntary Jurisdiction shall apply in accordance with the procedure in so far as nothing else is determined in this Act. § 185 (3) and § 189 (3) of the Law of the Court of Justice shall apply accordingly. Unofficial table of contents

§ 6

(1) Where the conditions for providing advice are met and the matter is not dealt with by the Local Court, the District Court shall issue an authorisation certificate to the requesting person, under the precise name of the matter. Advice provided by an adviser of his or her choice. (2) If the person seeking advice turns directly to an adviser on the basis of advice, the application for the approval of the counseling assistance can be subsequently submitted. In such a case, the application shall be submitted no later than four weeks after the start of the counselling service. Unofficial table of contents

§ 6a

(1) The court may cancel the authorization on its own account if the conditions for the assistance provided at the time of the authorization have not been fulfilled and no more than one year has elapsed since the authorization. (2) The adviser may: request the waiver of the authorization if the applicant has obtained something for the purpose of the advice or representation for which he has been authorised to provide advice. The application can only be made if the counselor

1.

has not yet applied for a counseling allowance pursuant to § 44 sentence 1 of the Law Remuneration Act; and

2.

the applicant has referred to the possibility of submitting the application and the cancellation of the authorization as well as the consequences for the remuneration in accordance with Section 8a (2) in text form during the granting of the mandate.

The Court of First Instance annuls the decision on the granting of advisory assistance after consultation of the applicant if, on the basis of the applicant, the person concerned has fulfilled the conditions for the personal and economic circumstances of the authorization of the applicant Advisory assistance no longer fulfilled. Unofficial table of contents

§ 7

It is only the memory of the decision to reject the application for the approval of a counseling aid or to rescind the authorization of office on the grounds of, or at the request of, the adviser. Unofficial table of contents

§ 8

(1) The remuneration of the adviser is based on the provisions of the Law Remuneration Act, which apply to the advisory assistance. The adviser, who is not a lawyer, is equal to a lawyer in this respect. (2) The granting of advisory assistance means that the adviser is not entitled to compensation for the right-seeking person, with the exception of the Advisory assistance fee (§ 44 sentence 2 of the Lawyers ' Compensation Act) can be claimed. This also applies in the case of subsequent application (§ 6 (2)) until the decision by the court. Unofficial table of contents

§ 8a

(1) If the granting of the advisory assistance is cancelled, the remuneration claim of the adviser against the state treasury shall remain unaffected. This shall not apply if the adviser

1.

knowledge or gross negligence of the fact that the conditions for granting the assistance were not available at the time of the assistance provided, or

2.

the removal of the advisory assistance itself has been requested (Section 6a (2)).

(2) The adviser may require the right-seeking remuneration in accordance with the general rules if:

1.

does not require or retain compensation from the state treasury and

2.

the applicant has referred to the possibility of waiver of the authorisation and of the consequences of the remuneration in the case of the granting of the mandate.

In so far as the legal seeker has already paid the advisory assistance fee (number 2500 of Appendix 1 of the Law Remuneration Act), it is to be charged on the remuneration claim. (3) The approval of the advisory assistance is cancelled because the the personal and economic conditions for this cannot be fulfilled, the Treasury may request the right-seeking reimbursement of the amount paid by it to the adviser and withheld from the latter. (4) In the case of post-application advice not approved, the An adviser to the right-seeking remuneration, in accordance with the general rules, if he has referred him to the terms of the mandate. The second sentence of paragraph 2 shall apply accordingly. Unofficial table of contents

§ 9

If the opponent is obliged to replace the right-seeker with the costs of the exercise of his rights, he shall pay the remuneration in accordance with the general rules for the work of the adviser. The claim is based on the adviser. The transition cannot be claimed to the detriment of the right-seeker. Unofficial table of contents

§ 10

(1) In the case of cross-border disputes under Council Directive 2003 /8/EC of 27 January 2003 on the improvement of access to justice in cross-border disputes by establishing minimum common rules for Legal aid in such disputes (OJ C 327, 28.4.2002, EC No 41, OJ No. EU No 15), guidance is provided for

1.

for pre-processual legal advice with a view to an out-of-court dispute settlement,

2.

for assistance in the case of an application pursuant to § 1077 of the Code of Civil Procedure until the request has been received in the Member State of the court of jurisdiction.

(2) § 2 (3) does not apply. (3) For the transmission of applications for cross-border consulting assistance, § 1077 of the Code of Civil Procedure applies accordingly. (4) For incoming requests for cross-border consulting assistance, this is in § 4 para. 1 Sentence 2 shall be the competent authority. Section 1078 (1) sentence 2, subsection 2 sentence 2 and section 3 of the Code of Civil Procedure shall apply accordingly. Unofficial table of contents

§ 10a

(1) In the case of maintenance obligations under Council Regulation (EC) No 4/2009 of 18 December 2008 (OJ L 327, 30.12.2009, p. 1), the provision of advisory assistance in the cases referred to in Articles 46 and 47 (2) of this Regulation shall be granted regardless of the applicant's personal and economic circumstances. (2) For outgoing applications in The district court shall be responsible for the cross-border advice referred to in § 10 (1) at the seat of the Oberlandesgericht (Oberlandesgericht) in whose district the applicant has his habitual residence. The court referred to in the second sentence of Article 4 (1) (2) shall be responsible for incoming requests. Unofficial table of contents

§ 11

The Federal Ministry of Justice is authorized, with the consent of the Federal Council, to submit forms for the application for the granting of advisory assistance and payment of the remuneration of the judicial authorities in order to simplify and standardise the procedure by means of a legal regulation. Advising persons after the completion of the advisory assistance and prescribting their use. Unofficial table of contents

§ 12

(1) In the countries of Bremen and Hamburg, the established public legal advice replaces the advisory assistance under this law, if and to the extent that the state law does not determine anything else. (2) In the Land of Berlin, the right-seeker has the choice between the use of the public legal advice and advice provided under this law, if and to the extent that the law of the country does not specify otherwise. (3) The Länder may, by law, have the exclusive competence of advisory bodies. in accordance with Article 3 (1), to provide guidance. (4) The advisers of the Public legal advice, which has the competence of the judge's office, is obligated to secrecy in the same way as a representative attorney-at-law and, with the written consent of the person seeking advice, is entitled to obtain information from files relating to the legal profession. and to take a file view. Unofficial table of contents

§ 13

If the application for advisory assistance has been submitted before 1 January 2014, or if the advisory assistance has been granted before 1 January 2014, this law shall be applied in the version valid until 31 December 2013. Unofficial table of contents

Section 14 Entry into force

This law shall enter into force with the exception of § 14 on 1 January 1981. § 14 shall enter into force on the day after the announcement.