Investigation principle
The official determination principle (even inquisitorial , Inquisition maxim , ex officio investigations duty , official duty of disclosure states) that a court or public authority is obliged to issue that a decision should be based on ex officio , ie without request of an interested or independently to investigate.
Expressions
Administrative procedure
In administrative proceedings , the term “ investigation principle” is common ( Section 24 VwVfG , Section 20 SGB X , Section 88 AO ).
General and special administrative jurisdiction
In administrative court proceedings, one speaks of the principle of investigation ( Section 86 VwGO , Section 76 FGO , Section 103 SGG ).
Criminal proceedings
The principle of legality applies in criminal proceedings . According to this, the prosecution authorities - the public prosecutor's office , the police , the tax authorities and the main customs office - are obliged to prosecute offenses ex officio if there is an initial suspicion . You have a duty to intervene. Prosecution will only take place in the case of complaint offenses if a criminal complaint has been filed, unless the public prosecutor makes use of the option to affirm the special public interest in the prosecution. In offense the principle of legality is the opportunity principle regions: public prosecutors and courts can process without contact immaterial, according to § 153 Code of Criminal Procedure or if the weight of the debt does not preclude against conditions or instructions issued in accordance with § 153a Code of Criminal Procedure set .
In principle, only state bodies, in particular the public prosecutor's office and the police, are authorized to prosecute criminal offenses ( official maxim ). The state has the monopoly of indictment. At the same time, the official principle realizes the constitutionally required equality before the law ( Article 3, Paragraph 1 of the Basic Law ). An exception is the institute of private prosecution in accordance with Section 374 of the Code of Criminal Procedure (StPO), in which the injured party can pursue lighter crimes himself without having to appeal to the public prosecutor. The inquisition maxim (principle of material truth) also applies in accordance with Section 155 (2) of the Code of Criminal Procedure. According to this, the criminal courts are entitled and obliged to conduct an independent activity when investigating and deciding on the accused, regardless of the evidence submitted by the public prosecutor or defense.
Obligations of the Court
In the main hearing , in accordance with Section 244 (2) of the Code of Criminal Procedure, the court is obliged to ex officio extend the taking of evidence to all facts and evidence that are relevant to the decision in order to investigate the truth. The court must investigate all recognizable and sensible possibilities to clarify the facts.
Determining the true facts is the central concern of the criminal process. For those involved in the process, the duty to provide information establishes an indispensable right to the fact that the taking of evidence is extended to all facts and all suitable and permissible evidence that is relevant to the decision. Evidence obtained in a legally incontestable manner must be introduced into the proceedings if it can help to clarify the facts. The duty of disclosure extends as far as the facts that have become known to the court or at least the chairman from the files, through applications or suggestions or otherwise through the course of the proceedings, urge or suggest the use of evidence.
Notice of appeal in the event of breach of duty by the court
The complaint of clarification in the context of the appeal is justified if the court has failed to investigate which it had to feel compelled to undertake due to its obligation to clarify the facts in accordance with Section 244 (2) of the Code of Criminal Procedure. If an application for evidence has been submitted and rejected, the violation of the grounds for rejection of Section 244 Paragraphs 3 to 6 of the Code of Criminal Procedure (StPO) is to be objected to instead of a notice of disclosure. However, the Aufklärungsrüge is concerned, if a request for evidence either not found or rejected as inadmissible or proof application standards (for example in the case of so-called True insinuation was verbeschieden).
Civil jurisdiction
In civil court proceedings, the principle of presentation , also known as the principle of negotiation ( principle of formal truth ), applies when applying the code of civil procedure . In principle, the courts only base their decision on the facts presented by the parties unsolicited and, if necessary, determined by means of the gathering of evidence upon application ("Da mihi facta, dabo tibi ius."). In this respect, the parties are "masters of the procedure". However, in the interest of the most comprehensive and truthful determination of the facts as possible, the parties or authorities and public officials have certain obligations to publish .
A further exception is made for certain marriage and parentage matters, placement procedures, register matters, etc., for which the civil courts are also responsible, but which, in accordance with Section 26 FamFG, carry out the ex officio investigations required to determine the facts relevant to the decision.
A special feature applies in the labor court decision-making process, in which the court ex officio investigates the facts within the framework of the applications made ( Section 83 ArbGG ).
Bankruptcy proceedings
After receipt of the opening application ( Section 13 InsO ), the court determines ex officio the circumstances that are significant for the insolvency proceedings ( Section 5 InsO).
meaning
In the administrative and judicial proceedings concerned, there is a particular public interest in the complete and "correct" recording of the facts to be assessed and the factual decision to be made.
The administrative process not only serves the subjective legal protection of the plaintiff, but is also always an objective legal objection procedure insofar as the administrative jurisdiction in the structure of the separation of powers has to control the activities of the authorities in the public interest. In addition to the parties involved, a “representative of the public interest” therefore also takes part in the proceedings ( Sections 35 to 37 VwGO).
With regard to the presumption of innocence that applies in criminal proceedings, the right to a fair trial and other fundamental values of constitutional status, the modern rule of law may only punish the actual perpetrator appropriately. This requires an independent and comprehensive investigation of the facts ( Section 244 (2) of the Code of Criminal Procedure).
In matters of voluntary jurisdiction , which has been regulated in the FamFG since September 1, 2009 , the official operation with the principle of investigation (official operation) has always been in effect , since it involves administrative-like proceedings in which legal interests of general interest such as the best interests of the child, public safety or the public Belief z. B. the commercial register are in question.
content
In the case of official investigations, the authority or the court determines the type and scope of the investigation and is not bound by the submissions and requests for evidence of the parties involved. All significant circumstances for the individual case, including those favorable for those involved, must be taken into account ( Section 24 (2) VwVfG). In criminal investigations in particular, the public prosecutor's office has to determine not only the inconvenient, but also the exonerating circumstances and to ensure that the evidence that is to be feared is collected ( Section 160 (2) of the Code of Criminal Procedure).
The principle of official investigation obliges [to] undertake all investigations that are useful to clarify the matter within the framework of dutiful discretion. It is true that not every conceivable possibility needs to be pursued. However, there is an obligation to clarify and investigate if the submissions of those involved and the facts as such give cause for this after careful examination. The investigations are only to be concluded when a relevant result which influences the decision can no longer be expected from further investigations.
The consequence of this obligation to provide comprehensive information is the obligation to cooperate on the part of those involved who are best aware of the facts in question and who are therefore best able to provide information about it ( Section 26 (2) VwVfG). For the authority or court it is obvious to first ask the parties themselves for information.
In benefit law are in the 60 et seq. §§ SGB I controlled even further cooperation obligations, such as the obligation to appear in person, to undergo a medical or psychological examination or medical treatment or participate also in a vocational integration measure. If the person concerned does not comply with his duty to cooperate, the requested service can be refused or withdrawn again under certain conditions ( Section 66 SGB I). The limit for the obligation to cooperate is always the reasonableness or proportionality.
The taxpayer also has to help clarify the matter in the taxation procedure . for example through the obligation to keep accounts, to submit a tax return or to participate in an external audit ( § 90 , § 135 , § 140 , § 149 , § 200 AO). In the event of non-compliance, z. B. the tax bases are estimated ( § 162 AO) or there is even an administrative offense or criminal offense (tax evasion, § 370 AO).
Third parties may also be obliged to cooperate, e.g. B. according to §§ 315 ff. SGB III employer towards the Federal Employment Agency or according to § 28a SGB IV employer and according to § 28m , § 28o SGB IV employees towards the collection point for the total social security contribution.
Also in the administrative court proceedings ( § 86 VwGO, § 76 FGO, § 103 SGG), the court consults the parties to investigate the facts, in particular by requesting them to express themselves in writing, i.e. to submit written pleadings, which the parties then ex officio are to be transmitted.
The questioning of witnesses, the obtaining of expert reports, the taking of the inspection ("local appointment"), documents, consulted files and, exceptionally, the affirmation on oath serve for further investigation ( § 26 , § 27 VwVfG).
There is of course no obligation to cooperate in criminal proceedings , since no accused or accused has to incriminate himself or contribute anything to his own conviction ("Nemo tenetur se ipsum accusare.").
Failure consequences
A violation of the official investigation obligation, i.e. an inadequate clarification of the facts, constitutes a procedural defect.
Decision formula
If the objection or objection is justified, the authorities can revoke their decision and replace it with a new one free of procedural errors. A procedural flawed judicial decision can be overturned in the appeal or appeal judgment and referred back to the lower instance for other negotiation and decision ( § 130 , § 144 VwGO, § 126 FGO, § 159 , § 170 SGG, § 354 StPO).
Further consequences
Public liability
If someone violates his official duty to a third party in the exercise of a public office entrusted to him, the employer has to compensate the third party for the resulting damage ( § 839 BGB , Art. 34 GG). An example of such an official liability claim is provided by the decision of the Munich Higher Regional Court of September 28, 1995. Here, the plaintiff's statutory fees that he had to pay for engaging a tax advisor to defend against a tax assessment issued in violation of the principle of official investigation were compensated for awarded.
Criminal liability
Officials, in particular civil servants and judges, can make themselves liable to prosecution for obstruction of punishment in office if they deliberately violate the principle of legality by preventing another person from being punished according to the criminal law or from executing the sentence already imposed on another person ( Section 258a StGB ) .
literature
- Dirk Bieresborn : Surfing as an official investigation - What are the limits of Internet research for social service providers? . In: Neue Zeitschrift für Sozialrecht (NZS), 2016, pp. 531–540.
- Indra Spiecker called Döhmann : The informational claim of the citizen in the administrative procedure: the principle of official investigation according to § 24 VwVfG . Preprints of the Max Planck Institute for Research on Collective Goods 2007,20. In: Econstor . 2007.
See also
Individual evidence
- ↑ Meyer-Goßner / Schmitt, StPO, § 244 Rn. 12
- ↑ BVerfG , decision of May 26, 1981, Az. 2 BvR 215/81, BVerfGE 57, 250 = NJW 1981, 1719
- ↑ BGH , April 4, 1951, Az. 1 StR 54/51, full text = BGHSt 1, 94.
- ↑ OLG Schleswig , judgment of October 3, 1979, Az. 1 Ss 313/79, Leitsatz = NJW 1980, 352.
- ↑ Meyer-Goßner / Schmitt, StPO, § 244 Rn. 80 with reference to BGH, decision of September 2, 2004, Az. 1 StR 342/04, full text = NStZ-RR 2004, 370.
- ↑ BeckOK InsO / Madaus InsO § 5 Rn. 2; 5
- ^ BGH, decision of February 17, 2010, Az. XII ZB 68/09, full text = FGPrax 2010, 128, 130 Rn. 28 mwN
- ↑ BVerwG , decision of June 12, 2007, Az. 9 B 28.07, full text on § 86 VwGO
- ↑ BGH, decision of December 6, 2012, Az. V ZB 218/11, full text on § 26 FamFG
- ↑ OLG Munich , judgment of September 28, 1995 - 1 U 2954/95, full text = NJW 1996, 1971.
