hearing
The hearing is the opportunity to comment on the matter to be decided in fact and law in judicial and administrative proceedings the parties. Unlike the interrogation, it does not serve to clarify the facts through question and answer, but realizes the constitutional right to be heard in court ( Art. 103 GG) and in administrative proceedings ( Section 28 VwVfG).
The hearing in German administrative procedural law
In Germany, an authority must hear everyone in whose rights it interferes before issuing an administrative act under Section 28 of the Administrative Procedure Act . Exceptions arise from the provisions of paragraphs 2 and 3; however, the more specific provision of Section 71 of the Administrative Court Code applies to the objection procedure .
The hearing is informal, so it can take place either orally or in writing.
If the duty to be heard is violated, there is a procedural error that makes the administrative act formally illegal. The failure to be heard can, however, be cured in accordance with Section 45 (1) No. 3 VwVfG by making up for it. For this purpose, it is sufficient if the opportunity to comment is given in the context of the objection procedure.
Special provisions on the hearing apply in formal administrative procedures in accordance with 66 VwVfG and in particular for plan approval procedures in accordance with Section 73 VwVfG.
The hearing in German social law
In terms of social law, Section 24 of Book 10 of the Social Code applies . The hearing must be carried out in the event of an interference with existing rights. Exceptions are permitted if
- an immediate decision seems necessary because of imminent danger or in the public interest,
- the hearing would call into question compliance with a deadline relevant for the decision,
- the actual information provided by a party that was made in an application or a * declaration should not be deviated from to his disadvantage,
- General decrees or similar administrative acts are to be issued in large numbers,
- Income-related benefits are to be adapted to the changed circumstances,
- Measures are to be taken in the administrative enforcement or
- to be set off against claims or with claims of less than 70 euros
The hearing in German patent law
The procedural provisions on the patent grant procedure before the German Patent and Trademark Office provide for a hearing as an exception to the actually written procedure in order to advance the procedure. Section 46 of the Patent Act is decisive . The examination board - an individual examiner - can invite the patent applicant to a hearing. The notifier can also request that a hearing be convened. If he does this, the patent examiner must invite you to do so once. The hearings take place in one of the offices of the DPMA in Munich.
When the hearing takes place, it is a personal discussion between the examiner and the applicant (possibly with or represented by his patent attorney ). During the hearing, the applicant can hand over new documents, in particular amended claims , which are to be used as the basis for the further procedure. The examiner can introduce the latest technology into the procedure.
At the end of the hearing, the patent examiner can immediately take a decision on the patent application, be it positive as a patent granting decision or negative as an appealable rejection decision . After the hearing, however, you can also go back to the written procedure, for example to do smaller formal work. The course of the hearing is recorded and the record becomes part of the file.
The hearing in front of the examining section must not be confused with the oral hearing before the patent department.
Web links
Individual evidence
- ^ Carl Creifelds: Legal dictionary . 21st edition 2014. ISBN 978-3-406-63871-8
