Official messenger

Official ban in Juf , Canton of Graubünden

The official bid is basically a mandatory official order. There have been other names for this legal institution in the past , e.g. B. Legal prohibition , prohibition, legal prohibition, official prohibition etc. Conversely, the same designation can also be found for other legal institutions in the Swiss cantons and partly in the Principality of Liechtenstein .

Switzerland

The legal message developed very differently over the centuries and from canton to canton. Basically, the legal bid or official bid procedure was an oral procedure in a rural population largely ignorant of reading and writing, the results of which were usually only announced orally (usually by calling out three times in front of the community). The most important area of application of this historical legal institute concerns the legal relationships on land and neighboring law , which formed a very important basis for the agriculturally structured society. The emergence but also the different design of these legal institutions is, among other things, a consequence of the smallholder structures and the lack of a central or permanent court in Switzerland at the time.

Since the Middle Ages , the authority that issued permits or issued bans has regularly been the Landammann or his deputy. In some cases, the Weibel also had an independent authorization right. In some Swiss cantons, the council was also mentioned .

Over the centuries, the Landammann became the only authorizing body everywhere. In the 18th and 19th centuries, as a result of the prevailing idea of the Enlightenment , this had to relinquish its competence to the courts almost everywhere in the area of constitutional law on the separation of powers and the recognition that the legal command is a judicial act. The official bid, insofar as it was created or continued to exist as a separate legal institution, remained primarily within the scope of administrative law and with the municipalities in the first instance .

It is characteristic of all legal messengers or official messengers that the recipient must obey them, even if he is obviously violated in his old rights by the order or the prohibition. The old (historical) legal command or official command therefore basically regulated the acquis until a judgment was passed and prevented unauthorized actions that disrupt the peace of the farming community. This explains why a legal command or official command had to be obeyed without any consideration for better authorization in the event of punishment. This purely formal provision, which often hits the individual hard, was supposed to make any possibility of extrajudicial disputes in the village community impossible or at least more difficult until an ordinary court came together and decided on it. The old legal rule should therefore not replace a judicial review, but rather enable it. Every violation of the law makes the violator criminal and obliged him to pay compensation. The penalty was a fine, of which the unfortunately (show-off, reporter, etc.) received a part. In the later period, there was no other means of dealing with a legal order or official order other than a lawsuit for judicial "opening" of the same ( legal opening "legal opening procedure").

Anyone who issues or demands a legal order or official order refers the attacked person and his / her claims to the ordinary legal process ( court or administrative proceedings ). He offers him justice, hence the name Rechtsbot. Whether a legal obligation or official obligation became legally valid or irrevocable through non-objection was not regulated in the same or the same way in all cantons in all centuries of application of legal obligation or official obligation.

Example: In the two cantons of Appenzell, if the objection is not made in good time, the content of the legal remedy becomes legally binding and enforceable. In the canton of Appenzell Innerrhoden this is expressed in § 26b ZPO ^old with the words: " Against official messengers, the legal proposal has to be made within ten days, otherwise the right of action lapses ".

Principality of Liechtenstein

In Liechtenstein, the official ban or official ban was introduced in the course of adopting property law from the Swiss Civil Code (ZGB) in 1923. This legal institution was not known in the property law that was previously in force from 1812 to 1923 and originated from the Austrian ABGB .

In Liechtenstein, the official messenger procedure is a procedure within the municipalities' own sphere of activity (municipal administration matters). It is regulated in Liechtenstein property law (SR) in Art. 103, 104, 113 SR and was standardized in Art. 23 Ordinance on Property Law (SRV).

The legal process is regulated in Sections 593a ff. Of the Liechtenstein Code of Civil Procedure ( FL Code of Civil Procedure ). These sections represent a peculiarity in Liechtenstein civil procedure law and do not fit harmoniously into the received civil procedure law.

The official prohibition procedure is regulated in Art. 99 ff. Legal Security Code (RSO). The official prohibition procedure is generally only directed against an unknown group of people and is a police authority (official order) of the municipality in its own sphere of activity. The “official prohibition procedure” mentioned in Art. 113 (3) SR is not the same as the “official bid procedure” as it is mentioned in Art. 103 SR in conjunction with Art. 23 SRV.

literature

Hans Fritzsche , Das Rechtsbot. A peculiarity of civil lawsuits in Eastern Switzerland. Dissertation Zurich 1905.
Antonius Opilio , Working Commentary on Liechtenstein Property Law , EDITION EUROPA Verlag, 2009.

Sources and References

↑ Oral public announcement by proclamation (also announcement, termination) or other suitable verbal announcement etc., e.g. B. on the market square or during the church.
↑ The official messenger as an administrative or judicial procedure has a linguistic, but not a direct, legally relevant connection with the person of the official messenger .
↑ This ordinance (SRV) was amended by the ordinance of November 4, 2008 on the land register (GBV), LGBl. 267/2008, Art. 129 lit. a), repealed.
↑ Inserted into the ZPO by LGBl. 1924 No. 9.
↑ The Liechtenstein Code of Civil Procedure was largely based on the Austrian Code of Civil Procedure (ÖZPO). The Austrian Code of Civil Procedure of 1895 does not recognize such a legal institution.
↑ LGBl. 8/1923 and cf. Art. 113 SR.
↑ In the reception draft, Art. 699 Swiss Civil Code, no official prohibition procedure is provided, but “ the competent authority can issue certain specific bans. "

[1] Oral public announcement by proclamation (also announcement, termination) or other suitable verbal announcement etc., e.g. B. on the market square or during the church.

[2] The official messenger as an administrative or judicial procedure has a linguistic, but not a direct, legally relevant connection with the person of the official messenger .

[3] This ordinance (SRV) was amended by the ordinance of November 4, 2008 on the land register (GBV), LGBl. 267/2008, Art. 129 lit. a), repealed.

[4] Inserted into the ZPO by LGBl. 1924 No. 9.

[5] The Liechtenstein Code of Civil Procedure was largely based on the Austrian Code of Civil Procedure (ÖZPO). The Austrian Code of Civil Procedure of 1895 does not recognize such a legal institution.

[6] LGBl. 8/1923 and cf. Art. 113 SR.

[7] In the reception draft, Art. 699 Swiss Civil Code, no official prohibition procedure is provided, but “ the competent authority can issue certain specific bans. "