Provisional legal protection

from Wikipedia, the free encyclopedia
This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Under preliminary legal protection (including temporary legal or partly incorrect but widespread summary proceedings ) are understood in procedural law the possibility of subjective rights in emergency before deciding on a suit to protect effectively. If, due to the length of the proceedings, it is to be feared that a disputed right will finally be shortened or an infringement continued until a decision on the main matter has been reached, referring to a court in the main proceedings is exceptionally insufficient for effective legal protection.

The possibility of temporarily preventing a possible violation of the law can be determined by law or ordered by an authority or a court. While statutory provisional legal protection is limited to granting legal remedies or legal remedies suspensive effect ( suspensive effect ), drafting regulations can also be achieved through applications.

General

The provisional legal protection is a result of the fundamental right to effective legal protection , Article 19 (4) of the Basic Law .

All forms of provisional legal protection have in common that they do not make a final decision and generally do not allow the creation of a fait accompli (prohibition of anticipating the main issue). In this way you ensure the effectiveness and feasibility of a subsequent decision in the main proceedings. Provisional legal protection can only be claimed as long as a right is asserted in the main matter or can (still) be asserted (so-called latent accessory of provisional legal protection). In principle, provisional legal protection is granted in all areas of law.

With a hanging resolution , a temporary interim regulation that is self-terminating through the decision in the preliminary legal protection proceedings is permissible (so-called express-urgent legal protection).

In the case of preliminary legal protection by a court, the standard of review is reduced. There is only a so-called summary (rough) check. The well-founded possibility that the application is admissible and well-founded is sufficient . A probability bordering on certainty is not required. The type of presentation also differs from the main proceedings. The court may even without hearing or other hearing by decision decide and shorten deadlines. As a rule, the need to speed up the procedure does not permit the formal taking of evidence ( hearing of witnesses , site visits, expert reports ). A decision is made on the basis of the facts presented or known and the facts made plausible by the applicant . It is also permissible to take an affidavit into account.

In general, a claim for an order and a reason for the order are required. The claim to an order is the substantive claim made or to be asserted in the main by the applicant against the respondent ( Section 194 (1) BGB ); The reason for the order means the urgency of the matter, d. In other words, due to lack of time, it must be unreasonable for the applicant to pursue his claim in regular legal proceedings. In proceedings for provisional legal protection before the administrative courts (including social court and tax court ), these prerequisites do not apply if the objection or the action against the administrative act in question has no suspensive effect or the authority has ordered immediate execution (VzA). The aim of legal protection is then the suspension of enforcement (AdV). The application to the authority or the court is aimed at restoring or ordering the suspensive effect of the objection or the action. As a rule, urgency can be assumed here (the authority wants to carry out its administrative act), and instead of a claim for an order, the main thing is to examine the chances of success and, in cases of doubt, to weigh up interests.

Demarcation

Provisional legal protection must be distinguished from preventive legal protection , which is intended to prevent these rights from being enforced later, or only with considerable difficulties or unreasonable disadvantages, before legal positions arise. A typical case is the planning right , in which reference is made to a preventive injunction so as not to hinder later planning steps. However, there are basically no express procedures available for this. Rather, one is only entitled to take legal action as long as a violation of legal interests threatens and has not yet occurred, but initial planning and development steps define a recognizable gradual trend and are still contestable.

Example: When planning new building areas in which a. an annoying neighborhood will arise due to immissions , one has to attack the planning decisions and not the last building permit to be implemented in front of the front door after the development is approaching . It is true that you are involved as a third party in the building permit process, but you are then already materially excluded and cannot prevent the permit in the matter (so-called pig fattening case).

Civil litigation

In civil proceedings , preliminary legal protection can be obtained through:

Arrest

The arrest serves to secure the foreclosure of a monetary claim. The most common form is the "in rem arrest" ( § 917 ZPO), which can be ordered if, without its imposition, the enforcement of a judgment resulting from normal proceedings would be thwarted or made significantly more difficult. The decision then reads that because of a specific monetary claim (to be specified according to reason and amount), the property of the respondent is to be placed in rem arrest. The imposed attachment in rem is an enforcement title and allows foreclosure through the attachment of movable property or the entry of a security mortgage on real estate, but only for the purpose of security, while the utilization of attached objects is excluded due to the attachment.

Interim disposal

The preliminary injunction is the preliminary decision of the court in the urgent procedure, which serves to secure a non-monetary claim until the final decision. It is regulated in § § 935 to § 942 ZPO. The interim injunction is intended to secure the claim to a specific subject of dispute ( § 935 ZPO) (security order) or the legal peace ( § 940 ZPO) (regulation order).

The preliminary injunction is therefore issued under the following conditions:

  1. Right of disposal: The applicant must have a claim against the debtor (no right to monetary payment), which he seeks to secure.
  2. Reason for disposal: A reason for disposal exists if, without the disposal, the enforcement of the claim would be jeopardized or the disposal appears necessary to maintain legal peace. The reason for the disposition is the occasion for which the disposition is sought.
  3. Request for disposal ( § 936 , § 920 ZPO): The request must contain the claim to be secured and the reason for the disposal. It can be declared either in writing or in the minutes of the office ( Section 920 (3) ZPO). As a result of this second alternative provided for in the law, the application can also be submitted without consulting a lawyer , even if the competent court is a regional court ( Section 78 (3) ZPO). In principle, the court of the main matter ( § 937 , § 943 , § 802 ZPO) is responsible, in exceptional cases the court of the substantiated matter ( § 942 ZPO).

Both the claim and the reason for disposal must be made credible . For this purpose, in addition to the five pieces of evidence provided for in the main proceedings , limited to evidence that is present , the applicant can also obtain an oath instead of an affirmation ( Section 920 (2), Section 294 ZPO).

If the issuance of an interim injunction is to be feared, the opponent can make his point of view heard by the court at an early stage by depositing a protective letter with the courts in question. If the preliminary injunction has been issued, the respondent can object by means of an objection that the court hears the preliminary measure orally and makes a decision.

In contrast to a judgment in the main proceedings, an interim injunction is not served ex officio on the opposing party, but must be served by the applicant himself by means of a bailiff within one month of the issuance in order to be enforceable (service in party operations, Section 936 , Section 922 (2), Section 929 (2) ZPO). If the execution is carried out before the delivery, the delivery must be carried out within seven days after the execution and before the expiry of the monthly period according to § 922 (2) ZPO according to § 929 Abs. 3 ZPO . This is an exception to the basic regulations of § 750 , § 751 ZPO, according to which u. a. may only be enforced once the judgment or the enforcement clause has been served.

If an interim injunction proves to be unjustified (cf. § 945 ZPO), the opponent can assert a claim for damages against the applicant . This also applies if the applicant is not at fault . For this reason, obtaining an injunction always poses a cost risk for the applicant.

If the content of the disposition consists in the omission of an act or the toleration of the performance of an act, this can be enforced by fines or detention . These regulatory means are to be threatened beforehand. The permissible limit is 250,000 euros or six months imprisonment, the total imposed term of imprisonment must not exceed two years.

Simple formulation in the application: "Under threat of a fine of up to 250,000 euros, alternatively regular detention or regular detention for up to six months"

The threat of this framework does not, however, say anything about the amount of a means of regulation that can actually be expected. The conviction to a regulatory means requires the implementation of a new procedure (cf. § 890 , § 891 ZPO).

Provisional order

In addition to arrest and preliminary injunctions, there is also provisional legal protection in the form of preliminary injunctions in various types and phases of the procedure, for example in the context of appeal decisions ( Section 570 ZPO) and in enforcement proceedings ( Section 707 , Section 719 , Section 732 , Section 769 , § 770 , § 771 , § 805 ZPO).

Labor court proceedings

In labor court proceedings , the so-called acceleration principle applies in accordance with Section 9 ArbGG . Due to the special importance of gainful employment and earned income , the proceedings before the labor courts must always be accelerated in the main proceedings , in particular in the case of existing disputes . If this acceleration is not sufficient due to the situation of the individual case, the same procedures are available as in civil court proceedings , because the ZPO is also applicable in labor court proceedings in accordance with Section 46 ArbGG. In this context, interim injunctions to enforce vacation entitlement and wages as well as the entitlement to continued employment after a dismissal protection process in the first instance are of importance .

Voluntary Jurisdiction Procedure

Until June 30, 2007, there was provisional legal protection by means of a temporary injunction in the procedure under the Condominium Act (Section 44 (3) WEG old version) and in the context of complaint procedures according to Section 24 (3) FGG old version . The WEG procedure is now amended withdrawn from voluntary jurisdiction. Since July 1, 2007, WEG matters have been decided in civil proceedings; d. This means that the temporary injunction and not the temporary injunction is the correct type of procedure.

Provisional measures can be taken in special types of proceedings under the FamFG by means of a temporary order, for example in family disputes ( Section 119 (1) FamFG), in child-related matters Section 157 FamFG, in violence protection matters ( Section 214 (1) FamFG), in maintenance matters ( Section 242 FamFG ), in care matters ( § 300 to § 302 FamFG) and in accommodation matters ( § 331 FamFG).

Criminal trial

With regard to the most intervening provisional measure, pre- trial detention , the relevant provisions in the Code of Criminal Procedure ensure that a decision is made at short notice and that, in addition to an intermittent detention check, a new detention test can take place at any time upon application by the person concerned ( Section 115 , Section 115a , Section 117 , Section 118 Paragraph 5 StPO ).

In the complaint procedure ( Section 307 (2) of the Code of Criminal Procedure) and for some special decisions ( Section 360 (2) or Section 458 (3) of the Code of Criminal Procedure) there is the option of suspending the execution of a decision or of issuing an interim order.

As a special type of provisional legal protection, objects or their surrogates that are subject to confiscation in Section 74 of the Criminal Code or the forfeiture of Section 73 of the Criminal Code or in order to assist the injured in pursuing claims for damages (recovery assistance) can be confiscated by law enforcement bodies , Section 111b (5), Section 111h , § 111i StPO.

Appeal of judicial administrative files

In proceedings against administrative acts of the judiciary ( § 23 to § 30 EGGVG ), due to the lack of regulations in the EGGVG - albeit controversial - temporary legal protection by means of analogous application is possible. In particular, § 29 Paragraph 3 EGGVG refers to the FamFG, in particular §§ 71 ff. FamFG.

Administrative jurisdiction

Provisional legal protection is usually already granted by law against an administrative act that encroaches on the rights of the citizen. The citizen is fundamentally protected from an immediate enforcement of such administrative acts as soon as he takes formal action against them. Avoidance objection and avoidance action have suspensive effect ( Section 80 (1) sentence 1 VwGO ).

By virtue of the suspensive effect, the administrative act is temporarily not enforceable or enforceable, although it becomes effective upon notification and must be observed. No other legal or factual conclusions may be drawn from the administrative act (e.g. fine).

The principle of Section 80 (1) VwGO is often broken in practice ( Section 80 (2) VwGO):

  • when requesting public charges and costs (e.g. development contribution , including municipal taxes)
  • in the case of orders and measures by law enforcement officers that cannot be postponed (this also includes traffic signs and traffic facilities.)
  • in other cases prescribed by federal law or for state law by state law, in particular for objections and complaints by third parties against administrative acts that concern investments or the creation of jobs
  • in the case of administrative enforcement measures (e.g. setting a penalty payment ), if provided for by the state legislature
  • in other cases in which the authority has specifically ordered immediate execution in the overriding public interest or in the overriding interest of one of the parties involved (e.g. order to fell a rotten tree). In these cases, the overriding public interest or the overriding interest of the party involved must be specifically justified ( Section 80 (3) VwGO). The reasoning must not be limited to a reproduction of the law or to mere formulas and phrases - rather, a case-by-case explanation is required. Even a reference to the reasons for the administrative act is usually not sufficient (this may be different with measures to avert danger ). The order for immediate execution is not itself an administrative act, as there is no "regulation" in the sense of § 35 sentence 1 VwVfG is given. In addition, the sense and purpose speak against the acceptance of an administrative act, since otherwise an objection with suspensive effect could be filed again against this order and thus a spiral effect would set in.

The authority that issued the administrative act and the objection authority can suspend the immediate enforcement if the objection pursuant to Section 80 (2) VwGO has no suspensive effect by law or due to an official order ( Section 80 (4) VwGO).

In administrative procedural law , provisional legal protection is granted upon application by the administrative court, which has or should decide on the main matter (court of the main matter). A distinction must be made between:

  • Ordering the suspensive effect of objection and rescission action if it is not originally given, i.e. the rule of Section 80 (1) VwGO does not apply ( Section 80 (2) sentence 1 No. 1 to 3, Section 80 (5), Section 80a VwGO),
  • Restoration of the suspensive effect if it has been eliminated beforehand ( Section 80 (2) sentence 1 no.4; Section 80 (5), Section 80a VwGO),
  • Determination of suspensive effect ( analogous to Section 80 (5) VwGO) if the authority denies the occurrence of the suspensive effect, e.g. B. because it is of the opinion that the appeal was lodged for a limited period of time,
  • Provisional order in all other cases ( Section 123 VwGO): A distinction must be made between the security order pursuant to Section 123 Paragraph 1 Sentence 1 VwGO to maintain the status quo and the regulatory order pursuant to Section 123 Paragraph 1 Sentence 2 VwGO for the adoption of a measure.

Provisional legal protection is also given in the process of regulatory control by issuing an interim order ( Section 47 (6) VwGO)

Tax court proceedings

The legal situation is similar to that in the administrative court process. However, in the case of enforceable notices, the court does not order the suspensive effect, but rather the suspension of the execution of the tax notice ( Section 69 (2 ) FGO ). Similar to tax notices, which are checked by the administrative courts (see Section 80 (6) VwGO), a previous application to the tax authorities ( Section 361 AO ), which has not been successful ( Section 69 (4) FGO) .

A suspension of the execution is ruled out if the tax or liability notice has become final (incontestable) because z. B. the objection period has expired without an appeal. Then there is no question of granting the suspension of execution for reasons of equity. A suspension of execution due to undue hardship is ruled out if there are no doubts about the legality of the contested administrative act. Remain possible deferral requests .

If there is no suspicious administrative act (rejection of deferral and waiver, or a reimbursement is requested), only the interim order according to § 114 FGO comes into consideration.

Social judicial procedure

Provisional legal protection in social jurisdiction is structured in a similar way as in administrative court proceedings ( § 86a and § 86b SGG ).

Proceedings before the Federal Constitutional Court

In proceedings before the Federal Constitutional Court , in the event of a dispute, a situation can be provisionally regulated by means of an interim order in accordance with § 32 BVerfGG if this is urgently required to avert serious disadvantages, to prevent threatened violence or for another important reason for the common good. The creation of a fait accompli, which could render a decision in the main proceedings obsolete, should be avoided.

The court relies on the so-called double hypothesis, in which the disadvantages that would arise if an interim order were not issued, but the main proceedings were successful, are weighed against the disadvantages that would arise if the coveted interim order were issued, the main proceedings but ultimately success would fail. It must be weighed up against each other which impairments the parties would have to face in the event of the interim order being issued and which impairments would arise in the event of non-issuance. However, the BVerfG only enters into the weighing of consequences if the main proceedings are neither obviously inadmissible nor clearly unfounded. Is there a case of particular urgency i. S. d. Section 32 (2) sentence 2 BVerfGG, the parties may not submit a statement.

The same applies to the procedure before the Bavarian Constitutional Court (BayVerfGH). Art. 26 BayVerfGHG is based on § 32 BVerfGG.

literature

To the administrative court procedure

To the social court procedure

  • Thomas Krodel: The urgent social court proceedings. 3. Edition. Nomos Verlag, Baden-Baden 2012, ISBN 978-3-8329-6274-6 .

To the tax court proceedings

To the constitutional proceedings

  • Rüdiger Zuck: The right of constitutional complaints , 4th edition 2013, Rn. 1099 ff.

Individual evidence

  1. ↑ § 57 Provisional legal protection / II. "Eil-Eil-Rechtsschutz": Interim decision / "Suspension decision" at haufe.de, accessed on September 12, 2018.
  2. ↑ BVerwG, judgment of February 25, 1977, Az. IV C 22.75
  3. ↑ Synopsis on § 44 WEG old version on buzer.de, accessed on December 23, 2015.
  4. ^ Marie Herberger: Hearing before issuing the order for immediate execution? | klartext-jura.de. Retrieved on July 7, 2018 (German).
  5. ^ FG Munich, decision of October 7, 2004, Az. 6 V 3036/04, guiding principle .
  6. ↑ BVerfG: Important types of proceedings - interim legal protection , accessed on June 24, 2016.
  7. ↑ BVerfG, decision of January 27, 2006, Az. 1 BvQ 3/06, full text , example of a regulatory order.
  8. ↑ BVerfG, decision of December 18, 2003, Az. 2 BvQ 70/03, full text , example of a security order.
  9. ↑ Rüdiger Zuck: The right of constitutional complaints , 4th edition 2013, Rn. 1102
  10. ↑ Rüdiger Zuck: The right of constitutional complaints , 4th edition 2013, Rn. 1148 ff.
  11. ↑ Rüdiger Zuck: The right of constitutional complaints , 4th edition 2013, Rn. 1149.
  12. ^ Carlo Pöschke: BVerfG: Application of the AfD parliamentary group to issue a temporary injunction rejected , accessed October 7, 2019.
  13. ↑ Rüdiger Zuck: The right of constitutional complaints , 4th edition 2013, Rn. 1191
  14. ↑ Art. 26 BayVerfGHG.