Action for annulment
The avoidance action is a type of action in the German administrative court code , in the tax court code and the social court law . In corporate law , the action against resolutions of the general meeting of a stock corporation is also referred to as a challenge.
Administrative procedural law
The avoidance action is one of the types of action according to the German Administrative Court Code (VwGO). With an action for avoidance pursuant to Section 42 (1), 1st alt. VwGO, the plaintiff requests the annulment of an onerous administrative act that has not yet been completed (therefore sometimes also called annulment action; this also includes ancillary provisions that can be challenged in isolation ) by the administrative court . The action for avoidance is not admissible for legal protection against so-called simple administrative action ( real act ) and is rejected as inadmissible.
The peculiarity of a rescission action is that the judgment has a structural effect ( structural action ): It immediately changes the legal situation by eliminating the legal effects created by the administrative act (see cassation ). Further implementation by the administration is therefore not necessary. As a result, the legal action against the other types of action contained in the VwGO is more intensive in terms of legal protection: Although a mandatory action with the aim of obliging the administration to repeal an administrative act appears conceivable, this action is inadmissible because it provides less legal protection due to the necessary involvement of the administration offers. It follows that the action for annulment is only admissible against administrative acts of the intervention administration .
For the admissibility of a contestation suit, in addition to the assertion of an infringement of one's own rights, it is usually decisive that the plaintiff has unsuccessfully carried out the preliminary proceedings according to §§ 68 ff. VwGO before filing the suit . He must therefore lodge an objection , insofar as this is not excluded in accordance with Section 68 (2) VwGO . If this decision is not made in his favor or if a longer period of time passes without the authority taking any action ( Section 75 VwGO: action for failure to act ), the action for rescission is admissible.
According to Section 113 (1) VwGO, the action for rescission is justified if the administrative act is unlawful and the plaintiff's rights are thereby violated. The decisive point in time for assessing the factual and legal situation is the point in time of the last decision by the authorities, ie the notification of the objection or the initial decision if the preliminary proceedings are dispensable. In the case of an obligation action, on the other hand, the time of the last oral hearing is decisive.
The avoidance action is the most important type of action in the Financial Court Code (FGO). It is directed against burdensome administrative acts ( Section 40 (1) FGO). The court itself cancels the contested administrative act in whole or in part if the action is successful ( Section 100 (1) FGO). The type of action is therefore a structural action , because the court directs the legal situation without the need for the administration to implement it.
The Social Court Act (SGG) also provides for the annulment (1st case) or amendment (2nd case) of an administrative act as a type of action for annulment in Section 54 (1) SGG.
In addition, there is an action for avoidance under company law. This can be used to request the annulment of resolutions of the general meeting of an AG , KGaA or SE if these are contestable due to a violation of the articles of association or law. The Stock Corporation Act provides for this in Section 241 No. 5, Section 246 AktG. If the violation is so serious that the decision is null and void, an action for annulment must be brought under Section 241 . The provisions on the avoidance action are applied analogously to resolutions of the shareholders' meeting of a GmbH that have been formally established . In the case of resolutions that have not been formally established, however, an action for declaratory judgment according to Section 256 ZPO is permissible.
- For the introduction:
- Friedhelm Hufen: Administrative procedural law. 8th edition. Beck Verlag, Munich 2011, ISBN 978-3-406-60981-7 , pp. 196-265; 385-415.
- Martini: Administrative procedural law, systematic representation in a combination of graphics and text . 4th edition 2008, p. 36 ff., ISBN 3-472-05379-8
- Schenke: Administrative procedural law . 11th edition 2007, pp. 60 ff., ISBN 978-3-8114-3545-2
- Practice comments:
- Kopp / Schenke: Administrative Court Rules - Comment . 14th edition 2005, § 42 Paragraph 1, ISBN 3-406-49876-0
- Redeker / v. Oertzen: Administrative Court Rules - Comment . 14th edition 2004, § 42 Paragraph 1, ISBN 3-17-018041-X
- Tipke / Kruse : Tax Code and Tax Court Code (comment). Publishing house Dr. Otto Schmidt , Cologne 2007, ISBN 3-504-22124-0 .
- Graves, FGO, 7th ed.
- On the legal action for avoidance:
- Tielmann: The action for avoidance - a general overview taking into account the UMAG in: Wertpapiermitteilungen 2007, pp. 1686–1693.
- Detailed examination regulations for an administrative action for avoidance in OpinioIuris / Shajkovci : Appeal for avoidance - scheme .
- General brief explanation of different types of avoidance actions (external, German, Rechtslexikon24).