Suspensive effect
In jurisprudence, the suspensive effect is a possible legal consequence of filing a legal remedy or legal remedy against a judicial or administrative decision . By virtue of the suspensive effect, the contested decision may not be carried out until the appeal or remedy has been finally decided.
General
The suspensive effect applies to areas of law where legal remedies are still permissible against court decisions or administrative acts. Their legal force is postponed until the legal process has been exhausted , which is equivalent to a condition precedent from a material and legal point of view. This suspensive effect means that the decision does not become legally effective before the appeal has been finally decided. This applies above all to the Execution Law , Criminal Procedure Law , Administrative Procedure Law and the Administrative Procedure to.
Legal issues
There is suspensive effect in the Code of Civil Procedure (ZPO), in Criminal Procedure Law (StPO) and in Administrative Procedure Law .
- The foreclosure takes place from final judgments that are legally binding or declared provisionally enforceable ( § 704 ZPO). Conversely, enforcement of judgments that are not legally binding is not possible until there is legal force ( § 705 ZPO).
- In criminal proceedings, the application for reinstatement in the previous status does not prevent the enforcement of a court decision ( Section 47 (1) StPO). Even the filing of a complaint does not prevent the enforcement of the contested decision ( Section 307 (1) StPO), but enforcement of the contested decision can be suspended upon application (Section 307 (2) StPO). By submitting the appeal in good time , however, the legal force of the judgment is inhibited ( Section 316 (1) StPO); this also applies to the appeal in accordance with Section 343 (1) StPO . A prisoner's application for a judicial decision has no suspensive effect ( Section 114 (1) StVollzG ).
- There is a suspensive effect in the case of an objection and action for annulment in the administrative process ( Section 80 (1) VwGO ) and in administrative proceedings . Exceptions exist for the administrative acts referred to in Section 80 Clause 1 Paragraph 2 No. 1–4 VwGO. You concern
- the requirement of public charges and costs ; this applies accordingly to the objection to a decision issued in accordance with the tax code ( Section 361 AO ),
- orders and measures by law enforcement officers that cannot be postponed ,
- other cases prescribed by federal law or for state law by state law, for example the objection or the contestation action by a third party against the building inspection approval of a building project ( building permit ) in accordance with § 212a BauGB and
- Cases in which immediate execution is specifically ordered by the authority in the public interest or in the overriding interest of one of the parties involved.
- In those cases in which a legal remedy has no suspensive effect, the authority can, upon request, suspend execution if there are serious doubts about the legality of the challenged administrative act ( Section 80 (4) VwGO). If the authority rejects the application, the person concerned can apply to the court to order the suspensive effect in whole or in part in the cases of Section 80 (2) No. 1 to 3, in whole or in part in the case of Section 80 (2) No. 4 restore ( Section 80 (5) sentence 1 VwGO). The official suspension of execution temporarily inhibits the effectiveness of an administrative act (disputed).
The unemployment compensation is suspended pursuant without suspensive effect § 159 SGB III when employees behave insurance unconstitutional. If employable beneficiaries violate their obligations under Section 31 SGB II with regard to unemployment benefit II , there is also no suspensive effect.
International
Complaints submitted in good time (formerly: appeals) generally have suspensive effect under Austrian administrative procedural law . However, the authority can exclude the suspensive effect if the early enforcement of the decision is urgently required in the interest of a party in the public good because of imminent danger. In contrast, complaints (previously: appeals) have no suspensive effect under Austrian tax procedure law, so that these notices can be enforced after the one-month period for appeal has expired.
In Switzerland , the suspensive effect means that filing an objection or complaint does not result in the legal consequences ordered by an official order and enforcement is not possible. In principle, the complaint has suspensive effect (Art. 55 para. 1 VwVG). The suspensive effect of a possible appeal can, however, be withdrawn by the lower court (Art. 55 Para. 2 VwVG). However, this can only be done by the appellate authority and thus after the complaint has been submitted (Art. 55 Para. 3 VwVG). Complaints to the Federal Supreme Court generally have no suspensive effect (Art. 103 (1) BGG). A negative ruling that rejects a request for justification, amendment, annulment or determination of rights or obligations is also not accessible to suspensive effect.
