Action for performance

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The performance suit is aimed at the fact that the opponent is sentenced to an action , toleration or omission . It can be an admissible type of action in civil procedure law , administrative procedural law , social law and in financial court proceedings.

Civil litigation

In civil litigation, the performance claim is by far the most common type of claim. She is z. B. permissible if another person is suing for an outstanding purchase price payment (action) in accordance with Section 433 (2) BGB. According to § 1004 BGB, the owner of an item can demand that his property is not impaired, for example a property not by unreasonable emissions such as work noise from a neighboring property (omission). However, this does not apply if the owner is obliged to tolerate, for example due to an easement that he has granted the neighbor.

Administrative process

The administrative procedural law recognizes different types of action for performance. The relevant point in time for assessing the factual and legal situation is the point in time of the last oral hearing.

Compulsory action

The conviction to issue a rejected or neglected administrative act can be sought with an obligation action ( Section 42 VwGO). If an administrative act was rejected, the counterclaim for refusal is admissible; if an administrative act was omitted, the action for inaction .

General action suit

The general action suit in administrative procedural law is not expressly regulated. However, it is required in several regulations, for example in Section 43 (2), Section 111 , and Section 113 (4) VwGO . It is admissible if the plaintiff requests a service from the administration that is not an administrative act , in particular a real act .

In the general action suit, a distinction is made between the (positive) action action and the (negative) action for injunctive relief . Which sub-form is permissible is decided according to the plaintiff's legal protection objective.

In the case of an action for injunctive relief, a differentiation is made between an action aimed at the cessation of a current impairment and the preventive injunction to ward off a future impairment. The preventive injunction can not only be directed against simple administrative action , but in exceptional cases also against administrative acts. With regard to effective legal protection, this form of legal protection is i. S. d. Art. 19 para. 4 GG required and generally recognized.

Social judicial procedure

The Social Court Act also provides for the obligation action and the general performance action ( Section 54 Paragraph 1 and Paragraph 5 SGG).

Tax court proceedings

The performance suits are regulated in § 40, Paragraph 1 of the Finance Court Regulations. They are aimed at the conviction to issue a rejected or omitted administrative act (legal action) or for another performance.

The request for a different service is a marginal phenomenon in tax court proceedings, since the plaintiffs typically want to fend off sovereign interference in the tax process, but do not want to force the tax authorities to act.

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