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Indemnification Of The Defendant

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Chapter Summary

Article 48.1 governs the obligatory power of the judicial authorities to order that the defendant be paid indemnification by the applicant, while Article 48.2 contains provisions regarding the liability of the public authorities and officials. Article 48.1 makes a distinction between the injury suffered from abusive use of proceedings and the costs of proceedings incurred by the defendant, which may also include attorneys' fees. According to Article 48.1, sentence 1, the applicant is obliged to pay adequate compensation "to a party wrongfully enjoined or restrained" by the measure. An adequate compensation must therefore clear all economic losses suffered by the party enjoined that can be attributed to the wrongful measure. Article 48.2 is based on the general view that the State or its organs may, in principle, be held liable.

Keywords: Article 48; compensation; defendant; indemnification; judicial authorities; liability

10.1163/ej.9789004145672.i-910.300
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