remedy

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A natural or legal person can remedy this if he or she can be freed from burdens , defects or disadvantages .

General

The word remedy can be traced back to the “abhülf” with the same meaning, which first appeared in Cologne in 1786. The legal term “ remedy” occurs in different areas of law . A remedy is possible there through self-help of the person concerned , remedy by their contractual partner or by third parties .

civil right

In accordance with Section 314 (1) of the German Civil Code ( BGB), any contractual partner can terminate long-term obligations for good cause without observing a period of notice . If the important reason is a breach of duty in the contract , the disadvantaged contractual partner can request remedial action and only terminate the contract after a remedial period has elapsed without success (Section 314 (2) BGB). For example, in a lease abstraction of drinking water by the tenant is not possible, the landlord must the lack (or have) eliminate; However, the tenant can also remedy the defect himself (or have it removed) and demand reimbursement of the necessary expenses ( Section 536a (2) BGB).

In travel law, remedy means the establishment of the contractual condition of the travel service through supplementary performance . If the package is defective, can travelers according to § 651i para. 3 BGB § 651k 2 BGB even par. Require 1 BGB remedy or 651k according to § para. Remedy and compensation for expenses or demand according to § 651k Abs. 3 BGB remedy through other travel services (Replacement services). The traveler creates a remedy through his own initiative, for example, when he organizes an unusual excursion himself. The cancellation of the travel contract is only permitted if the tour operator has allowed a remedial period to expire (Section 651e, Paragraph 2 BGB).

Civil procedural law

In the complaint procedure in German civil proceedings , the judge or judicial officer whose decision is contested must first decide on the remedy in accordance with Section 572 (1) ZPO . If he considers the complaint to be entirely or partially admissible and well-founded, he must amend his decision accordingly and (partially) remedy the complaint. If he considers the complaint to be inadmissible or unfounded, he must submit it to the appeal court for decision.

Administrative procedure

In administrative procedural law , one speaks of remedial action in opposition proceedings if the authority that issued the administrative act or rejected it, partially or completely revokes the administrative act or makes the originally rejected administrative decision with an administrative act after all, because it justifies the objection holds. This can be done by reinterpreting , withdrawing or revoking the administrative act.

The remedy is regulated by procedural law in Section 72 VwGO . If the authority remedies the objection, a remedial notice is issued. If it does not remedy the situation, it must immediately submit the objection to the objection authority. For this reason, authorities often insist on rapid cooperation in the event of missing documents. Furthermore, if the objection is partially accepted, a partial remedial notice will be issued. The open part of the objection can be withdrawn if necessary. The objection authority then decides on the objection by means of an objection notice . If the remedy and objection authorities are identical, the remedial procedure does not apply.

If the objection authority is only active in the context of legal supervision , it only checks the legality. Until the final rejection of the remedy, however, the exit authority can revoke the decision if it considers it to be inappropriate after filing the objection.

Against the remedial decision itself the opposition procedure is not (any longer) be permitted . Rather, within the period of one month ( Section 74 VwGO), action for rescission ( Section 42 (1), 1st alternative VwGO) must be brought before the competent administrative court.

Types of remedies:

  • Cash redress (pure correction of a decision without a positive final decision, i.e. pure correction of a decision and resumption of the proceedings before the lower instance) or
  • Reformatory remedy (in the remedy, the complainant is granted what he was denied with the contested decision).

If the body whose decision is contested considers the appeal to be admissible and well founded, it must remedy it (Art. 109 (1) of the European Patent Agreement).

Individual evidence

  1. Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 2
  2. Ernst Führich , on the implementation of the EC package travel directive in German travel contract law , in: EuZW 1993, p. 347 ff.
  3. according to decision T 0919/95 of January 16, 1997 of the Boards of Appeal of the European Patent Office
  4. cf. also Margarete Singer / Dieter Stauder (eds.), European Patent Convention, 2013, Art. 109, Rn. 11